LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


CHARLES  E.  HUGHES 

THE  STATESMAN  AS  SHOWN  IN  THE  OPINIONS 
OF  THE  JURIST 


CHARLES  E.  HUGHES 

The  Statesman  as  Shown 
in  the  Opinions  of  the  Jurist 


BY 

WILLIAM  L.  RANSOM 


JUSTICE   OF  THE   CITY  COURT 
OF   THE    CITY   OF   NEW  YORK 


NEW  YORK 

E.  P.  BUTTON  &  COMPANY 
681  FIFTH  AVENUE 


LIBRARY 

UNIVERSITY  OF 

T\A17TO, 


COPYRIGHT,  1916, 
BY 

E.  P.  DUTTON  &  COMPANY 


Printed  in  the  United  States  of  America 


TO 
MY  WIFE 


PREFACE 

In  bringing  together  for  publication,  several 
years  ago,  "The  Constitutional  Decisions  of 
John  Marshall,"  the  scholarly  editor1  made 
reference  to  the  fact  that  "save  Washington, 
Hamilton  and  Lincoln,  no  American  stands 
higher  (than  Marshall)  as  a  constructive  states 
man  in  the  work  of  the  evolution  of  the  Union, ' ' 
and  he  added  that  "it  is  the  peculiarity  of  his 
work  of  statesmanship  that — practically  with 
out  exception — all  of  it  found  expression  in  the 
course  of  judicial  opinions  as  Chief  Justice." 

That  great  services  of  constructive  National 
statesmanship  should  thus  have  been  rendered 
in  a  judicial  position  and  given  expression 
through  judicial  opinions,  was  not  a  casual  cir 
cumstance  due  alone  to  the  ability  of  Marshall 
and  his  contemporaries  in  the  Supreme  Court. 
The  creation  of  the  Federal  judiciary  as  a 
separate  department  of  government,  and  the 
delegation  to  it  of  powers  and  duties  transcend 
ing  the  arbitrament  of  controversies  of  private 
right,  made  the  Supreme  Court  of  the  United 
States  all  that  Washington  called  it — "the  key- 

'"The  Constitutional  Decisions  of  John  Marshall,77  edited, 
with  an  Introductory  Essay,  by  Joseph  P.  Cotton,  Jr.,  of  the 
New  York  Bar.  (1905.) 


Vll 


viii  PEEFACE 

stone  of  our  political  fabric."  DeTocqueville 
found,  eighty-one  years  ago,  on  his  visit  to 
America,  that  the  Supreme  Court  had  been 
"placed  at  the  head  of  all  known  tribunals/' 
and  James  Bryce  later  observed  that  "The  Su 
preme  Court  is  the  living  voice  of  the  Constitu 
tion — of  the  will  of  the  people  expressed  in  the 
fundamental  law."  Entrusted  with  the  duty  of 
determining  co-ordinately,  but  finally  so  far  as 
the  departments  of  government  are  concerned, 
all  questions  of  the  meaning  and  requirements 
of  the  Constitution  and  Federal  laws ;  entrusted 
with  the  function,  in  behalf  of  the  Nation,  of 
passing  authoritatively  upon  those  questions  of 
adjustment  and  relationship  which  give  vitality 
to  the  National  power  and  solidarity  to  the 
Union  of  States,  the  Supreme  Court  has  con 
tinued  to  be  generally  the  most  expert  factor  in 
American  statesmanship  and  the  most  accurate 
expositor  of  the  ultimate  public  opinion.  Espe 
cially  as  to  questions  of  Constitutional  inter 
pretation,  the  trained  judgment,  detached  from 
local  controversies  too  commonly  called  poli 
tics,  has  carried  an  authority  which  needed  no 
finality  of  power  to  give  it  sanction;  casual 
Presidents  and  changing  Congresses  have  been 
in  no  position  to  speak  so  accurately  or  authori 
tatively  of  fundamental  questions  of  the  Na 
tional  structure  and  the  National  power.  The 
result  has  been  that,  through  the  years,  the 
Supreme  Court  has  embodied,  more  than  either 
the  executive  or  the  legislative  departments  of 


PKEFACE  ix 

government,  those  factors  of  accommodation 
and  adjustment  which,  under  Constitutional 
forms,  have  welded  a  workable  National  polity 
from  a  Confederation  of  hesitant  and  mutually 
distrustful  States.  Our  framework  of  govern 
ment  and  the  powers  committed  to  the  judiciary 
under  it  have  made  the  Supreme  Court  the 
exponent  of  the  expanding  Nationalism  of  each 
succeeding  generation,  and  the  statesmanship 
of  the  members  of  that  revered  tribunal  has 
been  at  least  no  less  influential  than  that  of  the 
leaders  in  legislative  councils  and  administra 
tive  responsibility. 

The  impressive  position  of  the  Supreme 
Court  as  an  expert  factor  in  the  formulation  of 
a  National  outlook  upon  matters  of  fundamental 
political  philosophy  and  procedure,  and  its  use 
fulness  as  a  continuing  agency  of  adjustment 
between  the  departments  of  government  and  be 
tween  State  and  Federal  authority,  have  been 
commented  upon  by  accurate  observers  of  the 
American  form  of  government.  For  example, 
in  the  opening  paragraph  of  his  "Constitu 
tional  Law  of  the  United  States,"  Dr.  von  Hoist 
pointed  out  the  reasons  why,  under  the  Ameri 
can  system,  the  viewpoint  of  the  jurist  becomes 
an  indispensable  factor  in  the  activities  of  the 
statesman,  and  why  likewise  the  Federal  jurist 
must  apply,  to  his  interpretation  of  the  charter 
of  government  and  the  amplification  of  its  ex 
panding  powers,  the  point  of  view  of  the  con 
structive  statesman.  "Like  every  constitution 


x  PREFACE 

which  has,  or  can  have,  a  real  life,"  said  he, 
"that  of  the  United  States  of  America  is  a 
result  of  actual  circumstances  of  the  past,  and 
not  a  product  of  abstract  political  theorising. 
.  .  .  Since  the  life  of  the  people  is  the  basis  of 
the  Constitution  and  undergoes  a  steady  devel 
opment,  the  Constitution  itself,  quite  apart 
from  any  formal  alterations,  must  have  a  cer 
tain  capacity  for  change,  and  this  not  the  less 
real  because  there  is  no  formal  statement  of  it 
in  the  instrument  itself.  A  Constitution  which 
resembles  a  Chinese  shoe  can  suit  only  a  nation 
which  has  sunk  into  Chinese  inertia.  .  .  .  If  the 
statesman  is  bound  to  be,  in  the  practical  dis 
charge  of  his  duties,  a  conscientious  jurist,  the 
jurist  must,  in  his  work  of  examination  and 
testing,  always  keep  in  mind  the  point  of  view 
of  the  statesman."  In  passing  judgment, 
therefore,  upon  any  matter  of  the  qualifications 
or  the  public  services  of  a  member  of  the  Su 
preme  Court,  there  is  necessarily  kept  in  mind, 
not  alone  his  skilled  judgment  in  the  decision  of 
controversies  between  man  and  man,  but  also 
his  outlook  and  vision  upon  National  life  and 
National  powers;  and  in  forming  estimate  of 
the  statesman  charged  with  legislative  or  execu 
tive  leadership,  account  must  be  taken  of  his 
views  of  constitutional  power  and  National 
dominance,  even  though  finality  of  interpreta 
tion  as  to  those  matters  is  committed  to  the 
judicial  branch  of  government.  The  statesman 
ship  of  the  judicial  officer  and  the  judicial  in- 


PREFACE  xi 

sight  of  President  and  legislator  are  each  an 
essential  part  of  the  effective  inter-adjustments 
of  our  Federal  system,  and  many  of  the  most 
sound  expressions  of  National  thought  and  most 
valuable  guide-posts  of  National  policy  are  to 
be  found  in  the  reported  decisions  of  the 
Nation's  great  Court. 

In  selecting  men  to  discharge  the  duties  of 
administrative  or  legislative  positions  in  the 
Federal  sphere,  there  is  often  failure  to  take 
into  account  their  opinions  upon  basic  questions 
of  governmental  purpose  and  National  power. 
These  are  looked  upon  as  "constitutional  ques 
tions  ' ' ;  they  are  thought  of  as  committed  to  the 
determination  of  the  Courts  alone.  In  point  of 
fact,  however,  the  judiciary  has  only  a  power 
of  review  and  limitation,  after  the  legislative 
and  executive  branches  have  acted  upon  their 
own  opinions  as  to  the  powers  denned  and  du 
ties  imposed  by  the  organic  law.  President  and 
Congress,  no  less  than  the  courts,  have  taken 
oath  to  support  and  fulfil  the  Constitution;  its 
provisions  are  no  less  binding  upon  them  than 
upon  the  Supreme  Court;  the  constitutional 
opinions  of  the  President  and  a  majority  of 
Congress  ordinarily  blend  with  their  views  of 
desirable  policy  in  shaping  the  course  of  polit 
ical  action;  and  as  to  the  overwhelming  ma 
jority  of  the  matters  dealt  with  by  the  Federal 
government,  the  determinations  of  the  executive 
and  legislative  departments  are  final  upon  ques 
tions  of  governmental  power,  duty  and  purpose, 


xii  PEEFACE 

and  judicial  review  is  not  called  into  action. 

The  views  held  by  a  President  or  Senator, 
for  example,  on  questions  of  State  and  National 
power  under  the  Constitution,  and  on  the  per 
missible  scope  of  social-welfare  legislation  un 
der  the  "police  power,"  may  be  no  less  decisive 
in  their  effect  upon  the  policies  of  the  govern 
ment  than  as  though  those  views  were  held  and 
declared  as  a  member  of  the  Supreme  Court. 
If  the  Executive  endeavours  to  go  beyond  the 
boundaries  of  National  power  as  defined  by  the 
Constitution,  or  if  he  endeavours  to  put  in  force 
legislative  measures  at  variance  with  the  fun 
damental  spirit  of  our  laws,  the  Supreme  Court 
is  vested  with  power  to  check  and  curb,  and 
its  determinations  are  final  on  the  question 
whether  Executive  proposals  are  in  excess  of 
constitutional  powers.  Beyond  the  boundaries 
as  defined  by  the  Supreme  Court,  the  Executive 
and  Congress  cannot  go,  without  recourse  to 
the  people  as  the  repositories  of  the  ultimate 
power,  through  orderly  amendment.  But  if  a 
timid  Executive  or  halting  Congress  hold  views 
of  National  powers,  duties,  rights,  and  concep 
tions  of  the  proper  boundaries  of  regulative 
control  in  the  public  interest,  which  fall,  it  may 
be,  far  short  of  the  National  concepts  declared 
by  the  Supreme  Court,  then  the  Constitutional 
concepts  of  the  President  and  Congress  become 
controlling  and  mark  the  limits  of  governmental 
policy  within  that  Administration. 

To  make  the  matter  still  more  concrete :    If  a 


PREFACE  xiii 

President  of  the  United  States  does  not  believe 
that  a  nation-wide  child-labor  law  is  within  the 
scope  of  powers  committed  by  the  Constitu 
tion  to  the  National  government,  his  view  of  the 
Constitution  prevents  the  enactment  of  such  a 
law,  unless  a  two-thirds  vote  of  Congress  over 
rides  him  or  he  changes  his  mind.  Every  mem 
ber  of  the  Supreme  Court  may  believe  that  un 
der  the  "commerce  clause"  of  the  Constitution 
and  in  the  exercise  of  the  broad  power  of  the 
National  government  to  act  effectively  for  the 
"public  welfare"  in  connection  with  essentially 
National  concerns,  a  Federal  child-labour  law 
would  be  within  the  power  of  Congress  to  enact 
and  of  the  President  to  sign  and  put  in  force; 
but  as  long  as  the  President  believes  that  the 
safeguarding  of  the  health  and  robustness  of 
children  in  industry  has  been  left  by  the  Consti 
tution  in  the  hands  of  the  States,  his  veto  gives 
finality  to  his  view  of  the  Constitution  and  the 
National  powqr,  unless  a  sufficient  preponder 
ance  of  the  members  of  each  House  of  Congress 
votes  to  overcome  his  adverse  view.  If  the 
President  and  Congress  hold  a  narrower  view 
than  does  the  Supreme  Court  as  to  the  boun 
daries  of  National  power  and  action,  that  is 
within  their  discretion,  and  they  are  account 
able  only  to  voters  who  may  not  have  taken 
those  important  factors  into  account  in  electing 
them  to  administrative  or  legislative  responsi 
bility.  A  "strict-construction,"  "States- 
rights"  President  may  give  effectiveness  to  a 


xiv  PREFACE 

cramped  and  devitalised  view  of  the  Nation  un 
der  the  Constitution,  and  may  give  finality  to 
such  a  view  in  the  face  of  a  contrary  outlook 
on  the  part  of  the  highest  judicial  authority  in 
the  land.  On  the  contrary,  a  statesman  who,  as 
von  Hoist  phrased  it,  is  "in  the  practical  dis 
charge  of  his  duties,  a  conscientious  jurist, " 
with  a  broad,  sound  concept  of  the  adaptability 
of  the  "unchanging  provisions"  of  the  Federal 
Constitution  "to  the  infinite  variety  of  the 
changing  conditions  of  our  National  life, ' '  is  in 
superb  position  to  make  effective  the  important 
constructive  reforms  which  he  undertakes. 

These  factors  which  I  have  indicated  give  rea 
son  for  especial  popular  interest  at  this  time  in 
the  opinions  rendered  by  Charles  Evans 
Hughes  during  the  period  of  his  service  in  the 
Supreme  Court  of  the  United  States.  From 
October  of  1910  to  June  of  1916,  he  was  a  mem 
ber  of  that  tribunal,  and  dealt  day  by  day  with 
the  epoch-making  issues  of  National  power  and 
policy  brought  into  its  chamber.  During  those 
eventful  years,  the  Supreme  Court  was  fulfil 
ling  more  than  its  usual  part  of  ' '  constructive 
statesmanship  in  the  work  of  the  evolution  of 
the  Union, ' '  and  it  is  true  of  Mr.  Hughes  during 
those  years,  as  it  was  true  of  John  Marshall 
throughout  his  period  of  great  service  to  the 
Nation,  that  "practically  without  exception " 
"all  of  his  work  of  statesmanship"  "found  ex 
pression  in  the  course  of  judicial  opinions." 


PEEFACE  xv 

During  nearly  six  years,  practically  the  sole 
record  of  the  views  of  Mr.  Hughes  upon  Na 
tional  problems  and  his  point  of  approach  to 
their  solution — the  record  of  his  constructive 
statesmanship  during  five  important  years — is 
of  necessity  to  be  found  in  the  reported  deci 
sions  of  the  Supreme  Court  of  the  United 
States.  When  it  is  proposed  by  some  to  trans 
fer  Mr.  Hughes  from  National  service  in  a  judi 
cial  position  to  the  supreme  executive  position 
of  the  land,  in  which  his  views  on  constitutional 
questions  would  by  his  oath  be  no  less  binding 
upon  him  than  heretofore,  it  would  seem  to  be 
of  importance  that  the  public  should  have 
means  of  becoming  familiar  with  those  views 
and  with  his  outlook  upon  public  questions  and 
with  the  way  in  which  his  mind  and  heart  work 
when  he  is  brought  to  face  vital  issues  of  Na 
tional  policy.  From  the  bound  volumes  of  these 
reports  of  the  decisions  of  the  Supreme  Court 
should  be  brought  to  the  people  of  the  United 
States  adequate  and  accurate  information  as  to 
the  views  and  vision  of  Mr.  Hughes  upon  gov 
ernmental  problems,  as  disclosed  by  his  unre 
mitting  daily  work  in  that  Court.  That  is  the 
purpose  of  this  volume. 

Of  course,  no  opinion  written  or  decision  par 
ticipated  in  by  Mr.  Hughes  as  a  member  of  the 
Supreme  Court  should  now  be  looked  upon  by 
any  one  as  reason  for  the  giving  or  withholding 
of  support  in  the  political  arena.  The  outcome 
pf  a  judicial  proceeding  cannot  with  propriety 


xvi  PKEFACE 

be  regarded  as  reason  for  the  political  reward 
or  punishment  of  a  judicial  officer  open-mind- 
edly  participating  therein  in  the  course  of  duty. 
The  work  of  an  independent  judiciary  has  been, 
and  will  continue  to  be,  kept  free  from  the  pos 
sible  operation  of  ulterior  influence  of  that 
kind.  At  the  same  time,  for  reasons  which 
have,  I  trust,  been  sufficiently  indicated,  the 
judicial  utterances  of  Mr.  Hughes  are  a  legiti 
mate  subject  of  analysis  and  consideration  at 
this  juncture,  in  so  far  as  they  disclose  the 
workings  of  his  mind,  his  outlook  upon  Na 
tional  problems,  and  his  manner  of  reasoning 
as  to  problems  which  come  before  the  Chief 
Executive  before  they  are  possibly  brought  be 
fore  the  Supreme  Court.  His  judicial  opinions 
upon  Constitutional  questions  compose,  thus 
far,  his  chief  contribution  to  National  states 
manship — a  very  notable  contribution,  indeed 
— and  the  electorate  will  find  no  reason  now  for 
excluding  Mr.  Hughes'  memorable  opinions 
from  its  own  available  sources  of  information 
as  to  the  manner  of  man  he  is  and  the  kind  of  a 
President  he  would  be  likely  to  be. 

The  chapters  which  follow  in  this  volume  do 
not  undertake  to  establish  or  disprove  the 
qualifications  of  Mr.  Hughes  for  the  Presidency 
of  the  United  States,  much  less  to  argue  for  or 
against  his  election.  The  purpose  is  to  present 
information — to  make  more  generally  available 
a  quantity  of  information  which  otherwise 
could  be  found  only  through  delving  through 


PEEFACE  xvii 

many  volumes  of  usually  dusty  law-books — and 
to  present  this  information  in  such  form  as  to 
make  it  understandable  by  a  reader  without 
legal  training.  To  this  end,  all  of  the  opinions 
prepared  by  Justice  Hughes  have  been  brought 
together  and  summarised  within  a  single  vol 
ume,  and  those  which  deal  with  questions  of  Na 
tional  power  and  policy,  as  distinguished  from 
the  adjudication  of  controversies  based  upon 
private  law,  have  been  quoted  from  at  length. 
An  effort  has  also  been  made  to  accompany  each 
such  quotation  with  a  fair  statement  of  rele 
vant  facts,  helpful  in  grasping  the  public  bear 
ings  of  the  views  uttered,  and  then  to  let  the 
opinions  themselves  tell  their  own  story  and 
guide  the  reader  to  his  own  impressions  of  the 
man  who  wrote  them.  I  believe  that  each 
reader  will  form  a  very  definite  impression  of 
Mr.  Hughes  from  a  careful  reading  of  his  judi 
cial  opinions,  as  quoted  in  the  present  volume. 
You  may  or  may  not  like  the  manner  of  man 
disclosed;  you  may  or  may  not  feel  that  he 
should  be  chosen  for  the  supreme  executive 
office  of  the  land — this  volume  is  in  fact  con 
cerned  with  none  of  these  queries.  Its  purpose 
will  be  fulfilled  if  the  lay  reader  finds  fairly 
presented  herein  the  information  on  which  he 
can  base  a  better  estimate  of  Mr.  Hughes. 

The  title  of  the  book  indicates  that  it  deals 
with  a  man,  his  service  in  the  Supreme  Court, 
and  the  opinions  which  he  rendered  as  a  mem 
ber  of  that  revered  tribunal.  That  is  at  least 


xviii  PEEFACE 

the  pretext,  if  not  altogether  the  theme.    In  a 
broader  sense,  the  volume  is  a  record  of  an  in 
stitution  during  nearly  six  important  years  of 
its  history,  and  I  shall  be  disappointed  if  any 
reader  gains  from  these  pages  only  an  estimate 
of  one  of  the  members  of  that  Court,  and  fails 
to  gather  an  impression  of  the  Court  itself,  as  a 
great,  unified  working  force  for  the  develop 
ment  of  National  institutions  and  the  conserv 
ing  to  the  communities  of  those  concerns  with 
which  they  can  most  effectively  deal.    If  there 
is  much  in  the  judicial  utterances  of  Justice 
Hughes    which    reflects    accurately    the    best 
thought  and  policy  of  the  Eepublic  as  embodied 
in  its  organic  law,  it  is  because  the  Supreme 
Court  itself  performs   accurately  and  accep- 
ably  that  function  of  interpretation  and  does 
its  full  part  in  making  republican  institutions 
the  available  instruments  of  justice  under  law. 
This  volume  has  of  course  been  prepared 
without  the  knowledge  of  Mr.  Hughes  or  those 
charged  with   the   conduct   of  his    campaign. 
Conceivably  they  would  not  wish  for  its  pub 
lication.    It  has  of  necessity  been  made  ready 
in  the  scant  leisure  permitted  by  daily  tasks 
which  demanded  first  consideration,  and  I  am 
indebted  to  Charles  G.  Keutgen,  of  the  New 
York  Bar,  for  aid  in  the  scrutiny  of  manuscript 
and  proofs. 

WILLIAM  L.  EANSOM. 
New  York  City,  July  20,  1916. 


CONTENTS 

CHAPTER  PAGE 

PREFACE •  vii 

TABLE  OF  CASES *       .  xxi 

I.    INTRODUCTION 1 

II.    NATIONAL  POWER  OVER  NATIONAL  INTERESTS    .  15 

III.  THE   DOCTRINE   OF   REASONABLE   RELATIONSHIP  74 

IV.  THE  SAFEGUARDS  AGAINST  ADULTERATION   AND 

MlSBRANDING   OF   FOODS   AND   DRUGS         .  .      101 

V.    THE  EIGHT-HOUR  WORKDAY  AND  COMPENSATION 
FOR    OCCUPATIONAL    DISABILITIES     ARISING 

FROM  TRADE  RISKS 127 

VI.    "THE  PAPER-BOX  FACTORY  GIRL  AND  THE  CON 
STITUTION  " 136 

VII.    COMPELLING    CHOICE    BETWEEN    WITHDRAWAL 
FROM  TRADES-UNION  MEMBERSHIP  AND  DIS 
CHARGE  FROM  EMPLOYMENT  ....     146 
VIII.     THE  RIGHTS  AND  INDUSTRIAL  STATUS  OF  WOMEN     154 
IX.    FRANCHISE   OBLIGATIONS    AND   VESTED   RIGHTS    164 
X.     PREJUDICIAL    RESTRAINT    OF    TRADE    AND    THE 
NEED   FOR   CERTAINTY   IN   THE  ANTI-TRUST 

ACTS 173 

XI.    THE  CASE  OF  LEO  M.  FRANK  AND  A  PUZZLING 

QUESTION   OF   NATIONAL   RESPONSIBILITY     .    191 
XII.     COMMUNAL  PROPERTY  AND  RELIGIOUS  ORDERS    .    205 

XIII.  THE  "SEPARATE  COACH"  LAW  AND  THE  SLEEP 

ING-CAR   .213 

XIV.  STANDARDS  OF  OFFICIAL  RESPONSIBILITY  AND  THE 

EFFICIENCY    OF    ADMINISTRATIVE    ADJUST 
MENTS     ,        .        •    221 

XV.    THE  MAN  WHO  BROKE  His  WRITTEN  CONTRACT 
WITHOUT  RE-PAYING  His  EMPLOYER  WHAT 

HE  HAD  BORROWED 235 

XVI.    AMERICA  AND  THE  IMMIGRANT  OF  TO-DAY  AND 

YESTERDAY      .        .       »       »       *       .       *    248 
xix 


XX 


CONTENTS 


CHAPTKB  PAGE 

XVII.  THE  COURTS  AS  ll  EXPERT  AGENTS  OF  DEMOC 
RACY"  ........  262 

APPENDIX  "A." — TABLE  OF  OPINIONS  WRITTEN 

BY  JUSTICE  HUGHES  FOR  THE  COURT  .  .  282 

APPENDIX  "B." — TABLE  OF  DISSENTS  BY  JUS 
TICE  HUGHES  FROM  THE  MAJORITY  'ACTION  328 

INDEX  .  ,    347 


TABLE   OF  CASES 

PAGE 

Adair  v.  U.  S.,  208  U.  S.  161 146,  147,  148,  153 

Adams  Express  Co.  v.  New  York,  232  U.  S.  14 73 

Aluminum  Co.  v.  Eamsey,  222  U.  S.  251 134 

American  Lithograph  Co.  v.  Werckmeister,  221  U.  S.  603  272 

Anderson  v.  Pacific  Coast  SS.  Co.,  225  U.  S.  187 73 

Arizona  &  New  Mexico  Ey.  Co.  v.  Clark,  235  U.  S.  669 ...   274 

Atlantic  Coast  Line  v.  Georgia,   234  U.  S.  280 53 

Atlantic  Coast  Line  v.  Eiverside  Mills,  219  U.  S.  186 87 

Bailey  v.  Alabama,  219   U.  S.   219 235-247 

Bailey  v.   The  State,   158  Alabama   25 236 

Baltimore  &  Ohio  E.  E.  Co.  v.  Interstate  Commerce  Com 
mission,  221  U.  S.   612 127,  128 

Bauer  &  Co.  v.  O'Donnell,  229  U.  S.  1 183 

Bosley  v.  McLaughlin,  236  U.  S.  385 162,  163 

Brown  v.  Elliott,  225  U.  S.  402 271 

Burt  v.  Oneida  Community,  137  N.  Y.  346 211 

Camfield  v.  U.  S.,  167  U.  S.  518 77 

Champion  v.  Ames,  188  U.  S.  331 65 

Chicago,  B.  &  Q.  Ey.  Co.  v.  McGuire,  219  U.  S.  549.  .79,  88,  134 

Chicago,  M.  &  St.  P.  Ey.  Co.  v.  Iowa,  233  U.  S.  334 73 

Chicago,  M.  &  St.  P.  Ey.  v.  Minneapolis,  232  U.  S.  430..   167 

Chicago,  E.  I.  &  P.  Ey.  Co.  v.  Arkansas,  219  U.  S.  453 130 

Chiles  v.  Chesapeake  &  Ohio  Ey.  Co.,  218  U.  S.  71 217 

City  of  Memphis  v.  Cumberland  Tel.  &  Tel.  Co.,  218  U.  S. 

624     275 

City  of  Owensboro  v.  Cumberland  Tel.  &  Tel.  Co.,  230  U.  S. 

58     168 

Collins  v.  Kentucky,  234  U.  S.  634 171,  221 

Coppage  v.  Kansas,  236  U.  S.  1 147,  148 

Dalmas  v.  Kemble,  215  Pennsylvania  State  Eeports  410. ..   278 

Dreier  v.  U.  S.,  221  U.  S.  394 272 

Dr.   Miles   Medical   Co.   v.   Park   &   Sons  Co.,   220    U.    S. 

373    179,  182 

Engel  v.  O'Malley,  219  U.  S.  128 249 

Ex  parte  Eiley,  94  Alabama  82 236 

Ferris  v.  Frohman,  223   U.  S.  424 185 

Frank  v.  Mangum,  237  U.  S.  309 191-203 

Fraternal  Mystic  Circle  v.  Snyder,  227  U.  S.  503 269 

Goesele  v.  Brineler,  14  How.  (N.  Y.)  589 211 

xxi 


xxii  TABLE  OF  CASES 

PAGE 

Graham  v.  West  Virginia,  224  U.  S.  616 270 

Grand  Trunk  W.  By.  Co.  v.  South  Bend,  227  U.  S.  544. ..  170 

Grant  v.  U.  S.,  227  U.  S.  74 272 

Hall  v.  De  Cuir,  95  U.  S.  485 218 

Hawley  v.  Walker,  232  U.  S.  718 127,  141,  145 

Heim  v.  McCall,  239  U.  S.  175 259 

Henry  Co.  v.  Dick  Co.,  224  U.  S.  1 180 

Herencia  v.  Guzman,  219  U.  S.  44 269 

Hipolite  Egg  Co.  v.  U.  S.,  220  U.  S.  45 66,  119 

Hoke  v.  U.  S.,  227  U.  S.  308. 67 

Houston  &  Texas  By.  Co.  v.  U.  S.,  234  U.  S.  342 18,  49 

Illinois  Central  K.  E.  Co.  v.  Skaggs,  240  U.  S.  66 269 

International  Harvester  Co.  v.  Kentucky,  234  U.  S.  216. ..  178 

Ives  v.  South  Buffalo  Ey.  Co.,  201  N.  Y.  271 76 

Kerfoot  v.  Farmers  &  Merch.  Bk.,  218  U.  S.  281 5 

Kiernan  v.  Portland,  Oregon,  223  U.  S.  151 227 

Los  Angeles  Switching  Cases,  234  U.  S.  294 230 

Louisiana  Ey.  &  Nav.  Co.  v.  New  Orleans,  235  U.  S.  164. .  166 

Louisville  &  N.  E.  E.  Co.  v.  Garrett,  231  U.  S.  298 92,  230 

Louisville,  etc.,  Ey.  Co.  v.  Mississippi,  133  U.  S.  587 218 

Luria  v.  U.  S.,  231  U.  S.  9 257 

McCabe  v.  Atchison,  Topeka  &  S.  F.  Ey.  Co.,  235  U.  S. 

151 213-220 

Memphis  v.  Cumberland  Tel.  &  Tel.  Co.,  218  U.  S.  624 275 

Miller  v.  Wilson,  236  U.  S.  373 128,  145,  162,  163 

Minnesota  Bate  Cases,  230  U.  S.  352. .  .15,  17,  19,  23,  53,  89 

Missouri  &  Kan.  Ey.  Co.  v.  City  of  Olathe,  222  U.  S.  187. .  167 

Missouri,  K.  &  T.  Ey.  Co.  v.  U.  S.,  231  U.  S.  118 130 

Mobile,  etc.,  B.  B.  Co.  v.  Turnipseed,  219  U.  S.  35 134 

Muller  v.  Oregon,  208  U.  S.  412 127,  162,  163 

Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225 161 

New  York  Electric  Lines  Co.  v.  Empire  City  Subway  Co., 

235  U.  S.  179 164 

New  York  v.  Becker,  241  U.  S.  — 7 

Noble  State  Bank  v.  Haskell,  219  U.  S.  104 77 

Norfolk  &  Western  Ey.  Co.  v.  Holbrook,  235  U.  S.  625 269 

Northern  Pac.  Ey.  Co.  v.  North  Dakota,  236  U.  S.  595...  89 

Owensboro  v.  Cumberland  Tel.  &  Tel.  Co.,  230  U.  S.  58. . .  168 

Pacific  Telephone  Co.  v.  Oregon,  223  U.  S.  118 227 

People  v.  Marcus,  185  N.  Y.  257 147 

Philadelphia,  B.  &  W.  By.  Co.  v.  Schubert,  224  U.  S.  603 . .  134 

Philadelphia  Co.  v.  Stimson,  223  U.  S.  605 73 

Plessy  v.  Ferguson,  163  U.  S.  540 216 

Port  Bichmond  Ferry  v.  Hudson  County,  234  U.  S.  317. ..  73 

Price  v.  Illinois,  238  U.  S.  446 117 

Purity  Extract  Co.  v.  Lynch,  226  U.  S.  192 122 

Eeaves  v.  Ainsworth,  219  U.  S.  296 224,  225 

Eussell  v.  Sebastian,  233  U.  S.  195 167,  168 


TABLE  OF  CASES  xxiii 

PAGE 

Santa  Fe  Ey.  Co.  v.  Grant  Bros.,  228  U.  S.  177 185 

Sault  Ste.  Marie  v.  International  Transit  Co.,  234  U.  S. 

333  73 

Savage  v.  Jones,  225  U.  S.  501 121 

Schwartz  v.  Duss,  187  U.  S.  8 211 

Seven  Cases  of  Eckmon's  Alterative  v.  U.  S.,  221  U.  S. 

488  6,  65,  105 

Slaughter  House  Cases,  16  Wall.  (U.  S.)  36 77 

Slocum  v.  N.  Y.  Life  Ins.  Co.,  228  U.  S.  364 277 

Standard  Oil  Co.  v.  U.  S.,  221  U.  S.  1 175 

Standard  Stock  Food  Co.  v.  Wright,  225  U.  S.  540 122 

St.  Benedict  Order  v.  Steinhauser,  234  U.  S.  640 205-211 

Stettler  v.  Oregon  (not  yet  decided) 138 

Sturges  v.  Beauchamp,  231  U.  S.  320 83,  131 

Taney  v.  Penn  Bank,  232  U.  S.  174 186 

Tang  Tun  v.  Bdsell,  223  U.  S.  673 260 

Thaddeus  Davids  Co.  v.  Davids,  233  U.  S.  461 186,  187 

Thompson  v.  Thompson,  218  U.  S.  611 5,  154,  156 

Toney  v.  The  State,  141  Alabama  120 236 

Truax  v.  Raich,  239  U.  S.  33 251-257 

Union  Lime  Co.  v.  Chicago  &  N.  W.  Ey.  Co.,  233  U.  S. 

211  171 

IT.  S.  v.  American  Tobacco  Co.,  221  U.  S.  106 175 

U.  S.  v.  Birdsall,  233  U.  S.  223 222 

U.  S.  v.  Citroen,  223  U.  S.  424 185,  221 

U.  S.  v.  Coca  Cola  Co.,  241  U.  S.  265 106 

U.  S.  v.  Johnson,  221  U.  S.  488 6,  65,  101 

U.  S.  v.  Midwest  Oil  Co.,  236  U.  S.  459 223 

U.  S.  v.  Eoss,  239  U.  S.  530 » 224 

U.  S.  v.  Smull,  236  U.  S.  405 222 

Wilmington  Transp.  Co.  v.  California  E.  E.  Commission, 

236  U.  S.  151 73 

Wilson  v.  U.  S.,  221  U.  S.  361 272 


CHARLES  E.  HUGHES 

THE  STATESMAN  AS  SHOWN  IN  THE  OPINIONS 
OF  THE  JURIST 


CHAPTER  I 

lETTKODUCTIOET 

CHAELES  EVANS  HUGHES  was  appointed  to  the 
Supreme  Court  by  President  Taft  on  April  25, 
1910.  He  was  then  nearing  the  close  of  his 
second  term  as  Governor  of  New  York,  having 
been  first  elected  in  1906.  Before  becoming 
Governor,  he  had  been  a  practising  lawyer  in 
New  York  City  since  1884,  with  the  exception 
of  the  years  1891  to  1893,  when  he  was  a  pro 
fessor  in  the  Cornell  University  College  of  Law 
at  Ithaca.  His  professional  eminence  had  re 
ceived  public  recognition  through  his  service  in 
1905  and  1906  as  counsel  to  the  special  investi 
gating  bodies  of  the  New  York  Legislature, 
known  as  the  Stevens  Gas  and  Electric  Light 
ing  Committee  and  the  Armstrong  Life  Insur 
ance  Investigation  Committee.  In  1906  he  had 
been  designated  as  one  of  the  special  counsel  of 
the  United  States  Department  of  Justice  to 
initiate  steps  for  the  prosecution  of  the  so- 
called  coal-owning  and  coal-carrying  railroads 
for  violations  of  the  Anti-Trust  and  Anti-Ee- 
bate  laws.  As  Governor  of  New  York,  he  had 
taken  a  large  part  in  the  draughtsmanship,  as 
well  as  advocacy,  of  constructive  statutes,  such 

l 


2  CHAELES  E.  HUGHES 

as  those  creating  the  New  York  Public  Service 
Commissions  and  those  formulating  more  ade 
quate  standards  for  the  conduct  of  the  affairs 
of  life  insurance  companies.  He  had  also  been 
responsible  for  the  creation  and  personnel  of 
the  so-called  Wainwright  Commission,  whose 
monumental  inquiry  into  the  social  aspects  of 
occupational  injury  and  disease  was  the  start 
ing-point  of  the  "  social- justice ' '  campaign  in 
many  States.  Governor  Hughes  worked  in  the 
closest  co-operation  with  the  "Wainwright  Com 
mission  throughout  its  exhaustive  labours,  and 
gave  executive  approval  to  the  Workmen's 
Compensation  Act  of  1910,  recommended  by  the 
Commission  as  a  frankly  experimental  begin 
ning  of  progress  in  that  domain  of  awakened 
social  conscience. 

The  Senate  of  the  United  States,  on  May  2, 
1910,  confirmed  the  appointment  of  Mr.  Hughes, 
but  the  October  Term  of  1909  was  then  nearing 
its  close  and  Mr.  Hughes  was  in  the  midst  of 
important  tasks  as  Governor  of  New  York. 
With  the  approval  of  the  President,  he  did  not 
resign  as  Governor  or  take  his  seat  as  a  member 
of  the  Supreme  Court,  until  October  10th.  The 
vacancy  thus  filled  was  that  created  by  the 
death  of  Justice  David  J.  Brewer  of  Kansas, 
who  had  died  on  March  28,  1910.  An  interest 
ing  commentary  upon  the  change  which  a  cen 
tury  has  brought  in  the  prestige  and  rank  of 
the  Supreme  Court  is  afforded  by  the  fact  that 


INTRODUCTION  3 

its  first  Chief  Justice  resigned  to  become  Gov 
ernor  of  New  York,  after  having  served  as 
Minister  to  England  for  a  year  without  with 
drawal  from  his  judicial  office,  and  that  Oliver 
Ellsworth,  whom  President  Washington  subse 
quently  appointed  as  Chief  Justice,  spent  two 
years  abroad  as  Commissioner  to  France,  like 
wise  without  resigning  the  Chief  Justiceship. 
As  Willoughby  says,1  "a  position  on  its  bench 
was  then  considered  not  as  important  as  many 
positions  now  ranking  far  below  it.  Such  posi 
tion  was  not  even  considered  incompatible  with 
the  holding  of  another  office  at  the  same  time." 
The  founders  of  the  republic  felt  that,  in  com 
mon  with  any  other  citizen,  a  member  of  the 
Supreme  Court  might  be  called  to  any  other 
post  of  public  service  as  the  public  need  arose, 
with  or  without  retirement  from  his  judicial 
place,  as  the  circumstances  seemed  to  warrant. 
This  view  gave  no  sanction,  however,  to  mani 
fest  political  bias  on  the  part  of  a  member  of 
the  Nation's  highest  Court,  as  was  shown  by 
the  failure  of  the  Senate  to  confirm  Washing 
ton's  appointment  of  Rutledge  of  North  Caro 
lina  as  successor  of  John  Jay  in  the  Chief 
Justiceship.  After  Rutledge  had  received  in 
formation  of  his  appointment,  he  delivered  a 
speech  which  disclosed  an  intense  partisanship, 
and  this  was  forthwith  recognised  as  disquali- 


Court    of    the    U.    S.,"    by    Westel    W. 
Willoughby.     (Johns  Hopkins  University  Studies:  1890.) 


4  CHARLES  E.  HUGHES 

fying  him  for  the  place  for  which  he  had  been 
named. 

At  the  time  Mr.  Hughes  was  translated  from 
executive  to  judicial  responsibility,  he  was  48 
years  of  age,  and  thus  by  nine  years  the  young 
est  member  of  the  Court.  Chief  Justice  Fuller 
of  Illinois  had  died  on  July  4,  1910,  and  Justice 
John  Maynard  Harlan  of  Kentucky  presided 
over  the  Court  from  the  opening  of  the  October 
Term  until  December  19th,  when  Justice 
Edward  Douglass  White  of  Louisiana  took  the 
oath  as  Chief  Justice,  by  appointment  of  Presi 
dent  Taft.  At  the  time  Mr.  Hughes  entered 
upon  his  duties,  the  Court  was  made  up  of 
Associate  Justices  Harlan,  "White,  Joseph  Mc- 
Kenna  of  California,  Oliver  Wendell  Holmes  of 
Massachusetts,  William  R.  Day  of  Ohio, 
William  Henry  Moody  of  Massachusetts,  Hor 
ace  Harmon  Lurton  of  Tennessee.  Justice 
Moody,  however,  had  suffered  for  some  months 
from  a  disabling  illness,  and  on  November  20th 
accepted  retirement  under  a  special  Act  of  Con 
gress.  The  virtual  re-constituting  of  the  per 
sonnel  of  the  Court  during  the  year  1910  was 
completed  by  the  appointment,  on  December 
12th,  of  Justice  White  to  be  Chief  Justice,  of 
Joseph  Rucker  Lamar  of  Georgia  as  successor 
of  Justice  Moody,  and  Willis  Van  Devanter  of 
Wyoming  as  successor  of  Mr.  White  as  Asso 
ciate  Justice.  The  Court  thus  had  again  its  full 
quota  of  members,  and  was  composed  of  Chief 
Justice  White  and  Associate  Justices  Harlan, 


INTRODUCTION  5 

McKenna,  Holmes,  Day,  Lurton,  Hughes,  Van 
Devanter,  and  Lamar.  This  rugged  and  well- 
balanced  working  organisation  was  unbroken 
until  the  death  of  Justice  Harlan,  on  October 
14,  1911.  On  March  18,  1912,  Mahlon  Pitney, 
Chancellor  of  New  Jersey,  took  his  seat  as  Jus 
tice  Harlan 's  successor.  On  July  12, 1914,  Jus 
tice  Lurton  died  during  vacation,  and  at  the 
opening  of  the  October  Term  of  that  year,  At 
torney-General  James  Clark  McReynolds  be 
came  a  member  of  the  Court,  by  appointment  of 
President  Wilson.  On  January  2,  1916,  Justice 
Lamar  died.  Louis  Dembitz  Brandeis  of  Bos 
ton  took  seat  as  his  successor,  immediately  be 
fore  Justice  Hughes  tendered  his  resignation 
on  the  tenth  of  June. 

The  first  reported  opinion  written  by  Justice 
Hughes  was  that  in  the  case  of  Kerfoot  against 
the  Farmers'  and  Merchants'  Bank,  reported  in 
the  218th  volume  of  the  United  States  Reports, 
at  page  281.  This  case  was  argued  before  the 
Court  on  October  25,  1910,  fifteen  days  after 
he  went  on  the  bench ;  the  opinion  prepared  by 
Justice  Hughes  was  handed  down  on  November 
7th,  less  than  two  weeks  later.  His  first  re 
ported  dissent  came  in  the  case  of  Thompson 
against  Thompson?  on  December  12th  of  that 
year.  In  this  case  Justices  Harlan,  Holmes  and 
Hughes  found  themselves  unable  to  accept  the 
majority  opinion  that  a  wife  could  not  main- 

*218  U.  S.  Keports,  page  611. 


6  CHAELES  E.  HUGHES 

tain  an  action  in  the  District  of  Columbia 
against  her  husband,  for  damages  for  an  as 
sault  and  battery  committed  against  her  person, 
and  Justices  Holmes  and  Hughes  concurred  in 
Justice  Harlan's  trenchant  assertion  of  a  con 
trary  opinion.  The  first  dissenting  opinion 
written  by  Justice  Hughes  was  in  the  case  of 
United  States  against  Johnson,2  on  May  29, 
1911.  In  this  dissent,  concurred  in  by  Justices 
Harlan  and  Bay,  Justice  Hughes  contended  that 
the  "mis-branding"  provisions  of  the  Food  & 
Drugs  Act  of  1906  applied  to  false  statements 
of  facts  as  to  the  curative  qualities  of  articles 
sold  as  drugs  and  medicines,  and  that  "mis- 
branding"  did  not  relate  merely  to  false  state 
ments  of  the  identity  of  the  article,  for  exam 
ple,  its  strength,  quality,  purity,  and  the  like. 
The  majority  of  the  Court  felt  otherwise,  but 
at  the  beginning  of  1916  Justice  Hughes  was 
able  to  write  for  a  unanimous  Court  an  opinion 
upholding  the  constitutionality  of  the  Sherley 
Amendment  of  1912  to  the  Food  &  Drugs  Act, 
by  which  amendment  Congress  had  given 
prompt  legislative  sanction  to  the  view  ex 
pressed  by  the  minority  in  the  Johnson  case  and 
had  unmistakably  declared  that  the  penalties 
against  mis-branding  should  be  deemed  applic 
able  to  any  "false  and  fraudulent"  statements 
on  the  package  or  label  "regarding  the  cura 
tive  or  therapeutic  effect  of  such  article"  sold. 
The  last  opinion  written  by  Justice  Hughes 

*221  U.  S.  Reports,  page  488. 


INTRODUCTION  7 

as  a  member  of  the  Supreme  Court  was  handed 
down  on  June  12,  1916,  the  Monday  following 
his  resignation.  This  opinion  x  dealt  with  the 
paramountcy  of  New  York  State  fish  and  game 
regulations  over  the  fishing  rights  of  "Western 
New  York  Indians  on  tribal  lands  alienated  by 
them  with  attempted  reservation  of  hunting 
and  fishing  rights.  It  had  been  prepared  by 
Justice  Hughes  and  approved  by  his  colleagues 
before  his  resignation.  " After  that  event,"  so 
states  the  note  which  precedes  the  opinion  as 
reported  in  volume  241  of  the  United  States 
Reports,  "it  was  again  considered,  re-adopted, 
and  delivered  by  White,  Ch.  J." 

From  the  first,  he  had  made  clear  his  belief 
and  desire  that  his  judicial  work  was  his  life 
work,  worthy  of  the  utmost  energy  and  ability 
at  his  command,  and  in  a  number  of  unmis 
takable  ways  he  had  made  known  his  desire  that 
friends  and  opponents  alike  should  cease  to 
think  of  him  in  any  political  connection.  He 
wished  to  remain  upon  the  Supreme  Court; 
he  believed  that  he  ought  to  be  permitted  to  re 
main  there ;  and  at  no  time  did  he  deviate  in  any 
discernible  degree  from  that  wish  and  that  be 
lief.  His  concise,  matter-of-fact  opinions,  free 
from  any  trace  of  utterance  which  could  be  re 
garded  as  written  for  the  public  ear  or  for  any 
purpose  foreign  to  the  necessities  of  the  con 
troversy  at  bar,  tend  to  refute  any  suggestion 

*New  York  vs.  Becker  (241  U.  S.  Eeports . 


8  CHAELES  E.  HUGHES 

that  at  any  time  from  October  of  1910  to  June 
of  1916  was  there  a  willingness  on  his  part  to 
be  counted  a  factor  in  future  political  calcula 
tions.  On  repeated  occasions,  he  made  known 
his  insistent  opposition  to  the  use  of  his  name 
in  connection  with  the  presidential  nomination 
which  he  had  deliberately  placed  aside  in  ac 
cepting  the  appointment  tendered  by  President 
Taft.  With  one  of  his  predecessors,1  appointed 
to  the  Supreme  Court  by  President  Lincoln, 
Justice  Hughes  believed,  however,  that  "the 
Chief  Magistracy  of  the  Republic  should 
neither  be  sought  nor  declined  by  any  American 
citizen,"  especially  at  such  a  time  of  National 
difficulty  as  was  presented  in  June  of  1916 ;  he 
felt  that  the  citizenship  of  the  Nation  had  the 
right  to  summon  to  the  Presidency  any  man  in 
the  land,  and  that  no  man  had  the  right  to  place 
his  own  preference  for  a  present  post  of  service 
above  the  right  of  the  people  to  requisition  for 
the  Presidency  the  best  ability  at  their  com 
mand.  He  made  known  his  own  preference  for 
remaining  in  the  Supreme  Court,  his  view  that 
it  was  for  him  the  highest  post  of  service  to  the 
Nation,  and  his  belief  that  nothing  should  be 
done  to  interrupt  his  work  in  that  tribunal ;  but 
when  the  time  and  the  summons  came,  he  said, 
with  perfect  truthfulness : 

1  Justice  David  Davis  of  Illinois,  nominated  by  the  Labor 
Beform  Party  in  1872.  In  1877,  Justice  Davis  resigned  from 
the  Supreme  Court  to  accept  election  to  the  U.  S.  Senate  from 
Illinois. 


INTRODUCTION  9 

I  have  not  desired  the  nomination.  I  have 
wished  to  remain  on  the  bench.  But  in  this 
critical  period  in  our  National  history,  I  recog 
nise  that  it  is  your  right  to  summon  and  that  it 
is  my  paramount  duty  to  respond.  ...  I 
should  have  been  glad  to  have  had  that  respon 
sibility  placed  upon  another.  ...  I  have  re 
signed  my  judicial  office.  ...  I  accept  the 
nomination. 

On  June  10,  1916,^  his  resignation  terminated 
the  judicial  service  begun  on  October  10,  1910. 

During  this  period  of  approximately  five 
years  and  eight  months '  service  in  the  Supreme 
Court,  and  within  the  twenty-four  volumes  of 
official  reports  numbered  from  two  hundred  and 
eighteen  to  two  hundred  and  forty-one,  Justice 
Hughes  prepared  150  opinions  which  were  ren 
dered  as  the  opinions  of  the  Court,  and  in  only 
nine  instances  was  there  dissent  from  his  opin 
ion  as  prepared.  In  but  three  instances  did 
more  than  one  Justice  dissent. 

He  could  not  with  accuracy  be  called  a  '  *  dis 
senting  judge."  Throughout  his  judicial 
career,  there  was  no  trace  of  that  showy  isola 
tion  of  individual  opinion,  whose  reverberating 
sentences  have  sometimes  shaken  public  con 
fidence  in  the  certainty  of  legal  principles. 
On  only  thirty  occasions  did  he  find  himself 
aligned  with  a  minority  of  the  Court,  and  in 
only  six  of  those  instances  did  he  write  the 
dissenting  opinion.  In  fourteen  of  the  thirty 
occasions,  he  concurred  in  dissenting  opinions 


10  CHARLES  E.  HUGHES 

prepared  by  men  long  his  seniors  in  the  Court ; 
and  in  six  instances  he  joined  with  colleagues 
in  dissenting  without  filing  memoranda  of  rea 
sons.  When  he  did  dissent,  it  was  usually  with 
large  minorities  and  on  close  divisions ;  in  about 
two  instances  throughout  his  service  on  the 
bench  was  he  alone  in  declaration  of  variance 
from  the  majority  view. 

In  the  appendices  of  this  volume  will  be  found 
a  complete  resume  1  of  all  the  opinions  which 
he  wrote  in  behalf  of  the  Court  during  his 
period  of  service  on  the  bench,  and  also  an 
equally  interesting  table2  of  summary  of  the 
controversies  as  to  which  he  found  himself 
[^aligned  with  a  minority  of  the  Court. 

He  was  in  fact,  if  all  indications  of  the  man 
and  his  work  may  be  accepted  as  indicating  a 
conclusion,  what  may  be  termed  a  "team-work 
judge."  He  worked  in  close  co-operation  and 
fellowship  with  his  associates,  in  that  task 
which  he  often  referred  to  as  "in  a  democracy 
.  .  .  the  highest  privilege  of  vocation."  To 
him  were  assigned  many  of  the  cases  requiring 
an  unusual  amount  of  physical  as  well  as  in 
tellectual  labour  of  the  most  exacting  sort,  and 
he  brought  to  that  work  an  incisive  and  ana 
lytical  mind,  a  conscience  sensitive  to  funda 
mental  right,  and  what  Mr.  Cotton  has  called 
"so  sound  a  common  sense  for  the  working  of 
legal  theory,  so  just  an  instinct  for  the  National 

1  See  page  282,  post.  a  See  page  328,  post. 


INTRODUCTION  11 

welfare,  and  so  austere  and  unswerving  a  judi 
cial  fairness  and  openness  of  mind." 

He  displayed  fl^Jbroad^_and  sympathetic 
knowledge  of  human  affairs,  and  that  knowl 
edge  was  Ms  guidance,  rather  than  any  pre 
conceptions  of  social,  economic  or  political  the 
ory.  Notably  along  lines  which  will  be  set  out 
in  later  chapters  of  this  volume,  he  made  a 
substantial  and  valuable  contribution  to  the 
orderly  development  of  American  law,  and  he 
did  it  by  working  incessantly  to  make  judicial 
processes  effective  in  the  application  of  funda 
mental  concepts  to  new  conditions.  His  opin 
ions  were  clear  and  rugged;  they  teem  with 
facts,  details,  corroboration  gained  from  au 
thoritative  sources  far  outside  the  law  books; 
they  are  deficient  in  any  display  of  vain  learn 
ing  and  mere  erudition  for  its  own  sake,  which 
might  make  them  more  attractive  to  a  lay 
reader  but  less  compact  in  dealing  with  the 
essential  issues. 

With  hardly  an  exception,  his  opinions  reveal 
a  man  who  is  looking  at  actualities  and  is  fac 
ing  forward.  His  judicial  statesmanship  as 
revealed  by  his  opinions  meets  fully  Burke 's 
definition : 

A  disposition  to  preserve,  and  an  ability  to 
improve  taken  together,  would  be  my  standard 
of  a  statesman. 

And  he  also  realised  with  Burke  that  "a  state 
without  means  of  change  is  without  the  means 


1 


12  CHARLES  E.  HUGHES 

of  its  own  conservation."  The  free  play  of  his 
compact  and  incisive  reasoning  touched  many 
topics — copyright  law,  the  patient  examination 
of  the  tribal  records  on  which  rest  titles  of  the 
lands  of  Indian  wards,  bankruptcy  and  commer 
cial  law,  the  simplification  of  procedure,  taxa 
tion,  the  franchises  and  rates  of  public  service 
corporations,  and  many  others — but  his  great 
and  memorable  service  was  in  re-definition  and 
application  of  the  boundaries  of  State  and 
National  authority,  and  in  welding  together 
anew  the  economic  and  political  elements  of  a 
dominant  Nationalism. 

It  could  with  propriety  be  said  of  him,  as  it 
was  said  of  John  Marshall  by  Mr.  Bryce,  that 

He  grasped  with  extraordinary  force  and 
clearness  the  cardinal  idea  that  the  creation  of 
'  a  National  government  implies  the  grant  of  all 
,  such  subsidiary  powers  as  are  requisite  to  the 
effectuation  of  its  main  powers  and  purposes, 
but  he  developed  and  applied  this  idea  with  so 
much  prudence  and  sobriety,  never  treading  on 
purely  political  ground,  never  indulging  in  the 
temptation  to  theorise,  but  content  to  follow 
out  as  a  lawyer  the  consequences  of  legal  prin 
ciples,  that  the  Constitution  seemed  not  so  much 
to  rise  under  his  hands  to  its  full  stature,  as 
to  be  gradually  unveiled  by  him  until  it  stood 
revealed  in  the  harmonious  perfection  of  the 
form  which  its  framers  had  designed. 

Justice  Hughes  vindicated  afresh  the  ade 
quacy  and  practicability  of  the  Constitutional 


INTRODUCTION  13 

concepts  of  the  boundaries  of  State  and  Na 
tional  action ;  he  established  in  concrete  fashion 
the  effectiveness  of  the  historic  concepts  of  con 
trol  ;  he  answered  acceptably  a.  challenge  which 
the  complexity  of  new  transportation  and  in 
dustrial  problems  seemed  for  a  time  to  make  to 
the  Federal  system. 

He  was  "a  team-work  judge, "  not  an  unrea 
soning-  adherent  of  individual  opinion.  Per 
haps  the  best  thing  that  can  be  said  about  his 
work,  under  all  the  conditions  of  the  National 
life  of  the  past  five  years,  is  that  it  does  not, 
and  was  not  made  to,  stand  out  in  any  way 
from  the  trend  of  policy  and  decision  of  the 
Court  as  a  whole.  This  record  of  his  opinions 
and  utterances  is  almost  equally  a  record  of 
the  opinions  and  utterances  of  the  Court  as  a 
whole.  JiM^wag^  progressive  and  forward- 
looking,  so  were  M$  colleagues.  The  great 
issues  brought  before  the  Court  were  threshed 
out  in  its  conferences,  and  thereby  was  devel 
oped  a  patriotic  unity  and  agreement  of  view 
which  has  fortified  both  the  Court  and  the  Con 
stitution  in  public  confidence.  There  may  be 
understanding  of  what  Justice  Hughes  meant, 
in  saying  before  the  New  York  County  Law 
yers'  Association  in  1911,  that 

In  the  conferences  of  the  Justices  of  the  Su 
preme  Court  of  the  United  States,  there  is  ex 
hibited  a  candour,  a  comprehensiveness,  a  sin 
cerity,  and  a  complete  devotion  to  their  task, 
that  I  am  sure  would  be  most  gratifying  to  the 


14  CHARLES  E.  HUGHES 

entire  people  of  the  Union,  could  they  know 
more  intimately  what  actually  takes  place. 

And  we  may  understand  what  former  Justice 
John  Archibald  Campbell  meant  in  saying,  in 
the  course  of  that  intimate  description  of  the 
work  and  conferences  of  the  Court  which  is  to 
be  found  in  his  remarks  at  the  exercises  in  com 
memoration  of  Justice  Benjamin  E.  Curtis  in 
1874,  as  reported  in  the  twentieth  volume  of 
Wallace's  Reports,  that  of  all  the  enumerated 
duties  performed  by  a  Justice  of  the  Supreme 
Court,  "the  most  arduous  and  responsible  duty 
is  in  the  conference." 

In  a  tale  adapted  from  the  Talmud,  there  is  a 
comparison  which  may  be  used  to  characterise 
the  manner  and  spirit  of  approach  to  public 
questions  which  seems  to  stand  out  through  the 
judicial  service  of  Charles  E.  Hughes.  Mas 
tery  of  law  and  its  development  and  applica 
tion  are  there  likened  to  a  great  heap  of  dirt 
that  needs  to  be  cleared  away: 

The  foolish  man  says :  "  It  is  impossible  that 
I  should  be  able  to  remove  this  immense  heap. 
I  will  not  attempt  anything  so  impossible.  I 
will  ignore  it,  and  pass  it  by,  and  say  there  is 
no  such  obstacle/'  But  the  wise  man  says:  "I 
see  it.  It  is  there.  It  has  to  be  dealt  with.  I 
will  remove  a  little  to-day,  some  more  to-mor 
row,  and  more  the  day  after,  and  thus  in  time 
I  shall  have  removed  it  all ;  and  the  fathers  will 
be  glad." 


CHAPTER  H 

NATIONAL  POWER  OVER  NATIONAL  INTERESTS 

THE  monumental  and  distinctive  service  ren 
dered  by  Mr.  Hughes  in  the  Supreme  Court 
was  in  the  so-called  "State  Rate  Cases" — an 
epochal  series  of  controversies  which  came  up 
from  the  commonwealths  of  the  Mississippi 
Valley  and  South-west  and  subjected  our  dual 
system  of  State  and  National  sovereignty  to  the 
most  severe  strain  and  test  since  the  Civil  War. 
To  him  there  was  entrusted,  not  only  the  pro 
digious  labours  of  the  perusal  of  an  unprece 
dented  quantity  of  printed  records  and  ex 
haustive  briefs,  incident  to  the  examination  of 
the  intricate  questions  of  valuation,  rates,  re 
turns,  fixed  charges,  depreciation,  repairs,  in 
tangible  and  physical  property,  franchises,  and 
the  like,  on  which  largely  depended  the  deter 
mination  of  the  reasonableness  or  confiscatory 
character  of  hundreds  of  orders  of  State  Com 
missions  affecting  thousands  of  rates  over 
diverse  areas,  but  also  the  preparation  of  opin 
ions  which  necessarily  undertook  the  task  of 
making  concrete,  understandable,  workable,  and 
consistent,  the  practical  applications  of  the  gen 
eral  principles  of  State  and  National  authority, 

15 


16  CHAELES  E.  HUGHES 

hitherto  stated  in  the  most  general  terms  in  the 
Federal  Constitution  and  expounded  in  termin 
ology  hardly  less  general,  by  Marshall  and  his 
successors  in  the  constructive  statesmanship  of 
the  Supreme  Court  of  an  earlier  day. 

There  was  doubt  on  the  part  of  many  whether 
it  was  physically  possible  that  a  court,  before 
which  issues  of  great  difficulty  and  public  im 
portance  were  coming  day  by  day,  without  end 
and  almost  without  interlude,  could  in  addition 
perform,  in  any  adequate  and  acceptable  fash 
ion,  the  task  of  scrutiny  and  review  of  such 
voluminous  records,  calling,  as  each  case  did, 
for  detailed  examination  of  facts  as  to  the  rela 
tive  adjustments  of.  rates,  the  income  from 
different  classes  of  traffic,  the  cost  of  trans 
portation  of  the  various  classes  of  traffic,  and 
the  whole  issue  of  the  reasonableness  of  the 
returns  from  the  rates  as  fixed  by  State  author 
ity.  As  one  saw  wagon-loads  of  exhibits 
brought  into  hearings  before  the  State  Commis 
sions  and  the  Interstate  Commerce  Commis 
sion;  as  one  looked  upon  the  bulky  volumes  of 
testimony  and  formidable  libraries  of  briefs 
prepared  with  laborious  effort  by  little  armies 
of  specialised  counsel;  as  one  saw  maps  and 
tariffs  piled  before  special  masters  and  listened 
to  the  droning  narrative  of  rate-experts  and 
tariff -men  as  to  the  way  in  which  schedules  have 
been  built  up  through  the  years  and  the  factors 
necessarily  taken  into  account  in  even  a  single 
community,  to  say  nothing  of  a  State  or  region, 


NATIONAL  POWER  17 

it  seemed  to  many  that  the  decisive  challenge 
to  National  regulation  had  come,  and  that  the 
whole  fabric  was  imperilled  by  the  physical  im 
possibility  that  a  busy  court  could  perform 
with  thoroughness  and  fidelity  to  fundamental 
principles  the  recurring  task  of  keeping  the 
rivalries  of  States  and  sections  within  the  con 
fines  of  the  fair  rights  of  invested  property 
and  the  paramount  interests  of  the  Nation  as  a 
whole. 

Such  was  the  challenge  to  National  regula 
tion  of  essentially  National  concerns — should 
that  National  control  in  the  National  sphere  be 
affirmed,  clarified,  made  effective,  or  was  it  now 
to  break  down,  virtually  under  the  weight  and 
complexity  of  the  demand  made  upon  the  Su 
preme  Court?  Mr.  Hughes  was  the  youngest 
member  of  the  Court ;  he  had  an  infinite  capac 
ity  for  patient  and  assiduous  application  to 
facts ;  he  had  come  from  the  atmosphere  of  rate 
and  regulative  matters  in-  New  York  State; 
upon  him  devolved  no  small  part  of  the  detail 
work  in  the  rate  cases.  The  statement  may  with 
entire  accuracy  be  made  that  few  men  of  ma 
ture  years  and  ripened  experience  could  have 
physically  performed  the  task  mastered  by  Jus 
tice  Hughes  between  the  close  of  the  argument 
in  the  Minnesota  Rate  Cases  *  on  April  12, 1912, 
and  the  handing  down  of  the  remarkable  series 
of  opinions  which  began  with  the  determination 
of  the  Minnesota  cases  on  June  9,  1913.  His 

1 230  U.  S.  Eeports,  page  352. 


18  CHAELES  E.  HUGHES 

opinion  in  the  Minnesota  case  alone  covers  a 
hundred  pages,  many  of  them  compact  with 
closely  marshalled  facts.  From  that  date  until 
the  filing  of  the  opinion  in  the  so-called  Shreve- 
port  case  *  a  year  later  less  a  day,  there  was  a 
continuance  of  the  same  labours,  and  opinions 
were  prepared  in  nine  cases  involving  volumi 
nous  printed  records,  intricate  facts,  and  per 
haps  the  most  far-reaching  issues  ever  pre 
sented  to  the  Court  in  a  single  line  of  cases. 

Nor  was  the  answer  merely  one  of  the  ade 
quate  performance  of  the  physical  task.  For 
years  there  had  been  strain  and  conflict  be 
tween  State  and  National  authority  in  many 
fields,  notably  that  of  railroad  regulation,  be 
cause  of  uncertainty  as  to  the  mode  of  apply 
ing  concepts  almost  a  century  old,  to  complex 
conditions  which  Marshall,  Curtis  and  Storey  in 
no  wise  anticipated.  The  task  of  judicial  clari 
fication  and  definition  was  an  undertaking  in 
constructive  statesmanship  second  perhaps 
only  to  that  performed  by  Marshall.  It  will 
remain  matter  for  regret  to  many  that  the  sum 
mons  to  another  field  of  public  service  led  Jus 
tice  Hughes  to  leave  the  Supreme  Court  with 
this  task  of  judicial  statesmanship  splendidly 
begun,  but  far  from  completed.  His  opinion  in 
the  Minnesota  Rate  Cases  and  subsequently  in 
the  Shreveport  case  will  ever  be  quoted  as  chart 
and  compass  of  the  metes  and  bounds  of  State 
and  National  sovereignty  in  the  regulative  field. 

*234  U.  S.  Reports,  page  342. 


NATIONAL  POWER        .         19 

These  opinions  are  truly  the  charter  of  a  vital 
ised  Nationalism. 

In  the  Minnesota  Rate  Cases,  there  was 
challenge  of  the  constitutionality  of  acts  of  the 
Minnesota  Legislature  and  the  State  Railroad 
and  Warehouse  Commission,  in  relation  to 
freight  and  passenger  rates  between  points 
wholly  within  the  State.  It  was  asserted,  in 
behalf  of  the  carriers,  that  the  action  of  the 
State  authorities  demanded  rates  so  unre- 
munerative  and  confiscatory  as  to  place  a  direct 
burden  upon  interstate  commerce,  accomplish 
results  forbidden  by  the  Interstate  Commerce 
Act,  and  exceed  the  permissible  limits  of  State 
action  as  to  instrumentalities  used  in  inter 
state  commerce,  even  though  the  action  was  in 
terms  addressed  only  to  segments  of  the  use 
of  such  instrumentalities  exclusively  within  the 
State.  In  the  so-called  Shreveport  case,  there 
was  challenge  of  the  dominance  of  the  Federal 
power  over  the  State  power,  where  it  appeared 
that  the  State  regulative  authority  had  fixed 
intrastate  rates  so  low  and  on  such  a  basis,  in 
relation  to  interstate  rates  in  part  through  the 
same  territory,  as  to  inflict  injury  upon  inter 
state  commerce  and  perpetuate  results  which 
the  Interstate  Commerce  Commission  had  ex 
pressly  found  to  be  discriminatory  and  viola- 
tive  of  the  regulative  rules  declared  by  Con 
gress  as  to  interstate  transportation.  The  as 
sertion  was  made  that  the  Federal  government 


20  CHARLES  E.  HUGHES 

was  not  empowered  by  the  "commerce  clause" 
to  control  or  direct  the  doing  of  anything  as  to 
a  rate  purely  intrastate,  especially  a  rate  fixed 
by  State  authority,  and  that  if  Congress  found 
that  injurious  discriminations  against  inter 
state  commerce  were  arising  from  the  relation 
of  interstate  and  intrastate  rates  in  the  terri 
tory  affected,  Congress  might  authorise  the 
reduction  of  the  former  to  the  plane  of  the 
latter,  but  could  not  require  the  carriers  or  the 
State  Commission  to  readjust  the  intrastate 
rates  in  accordance  with  a  determination  made 
by  the  Interstate  Commerce  Commission  as  to 
the  proper  relationship. 

A  volume  would  be  necessary  for  the  ade 
quate  discussion  of  the  determinations  of  the 
Supreme  Court  in  these  rate  cases  alone.  The 
questions  of  valuation,  properties,  franchises, 
depreciation  charges,  earnings,  rate  of  return, 
and  the  like,  cannot  be  here  considered  at  all, 
although  the  determinations  in  these  respects 
will  have  far-reaching  effects  in  the  domain  of 
railroad  administration  and  regulative  prac 
tice.  On  the  issues  of  State  and  National  au 
thority,  the  holdings  of  the  Court,  through  Jus 
tice  Hughes,  may  perhaps  be  briefly  although 
unsatisfactorily  summarised  under  four 
headings : 

As  to  the  power  of  Congress  over  interstate 
commerce  and  interstate  rates:  The  authority 
of  Congress  over  interstate  commerce  and  in- 


NATIONAL  POWER  21 

terstate  rates  is  paramount,  dominant,  exclu 
sive.  This  dominance  is  held  to  extend  to  every 
part  and  phase  of  interstate  commerce  and  to 
every  agency  and  instrumentality  by  the  use  of 
which  it  is  anywhere  carried  on.  It  cannot  be 
denied,  thwarted  or  limited  through  any  indi 
rection  or  through  the  mere  complexity  of  the 
transportation  business  and  the  inevitable  com 
mingling  of  intrastate  with  interstate  opera 
tions  and  properties.  Interstate  commerce  is 
National,  and  the  Nation  is  supreme  within  the 
National  field. 

As  to  the  power  of  the  State  over  interstate 
commerce:  The  State  has  no  authority  at  all 
as  to  interstate  rates,  nor  has  the  State,  irre 
spective  of  any  action  by  Congress,  any  power 
of  direct  control  with  respect  to  those  subjects, 
embraced  within  the  constitutional  grant,  which 
are  of  such  a  nature  as  to  demand  that,  if  regu 
lated  at  all,  their  regulation  should  be  uniform 
and  prescribed  by  a  single  authority.  As  to 
matters  deemed  at  any  time  to  require  a  general 
system  or  uniformity  of  regulation,  the  power 
of  Congress  is  exclusive.  As  to  other  matters 
admitting  of  diversity  of  treatment  according 
to  the  local  conditions,  the  States  may  act,  up 
to  such  time  as  Congress  sees  fit  to  act  in  that 
respect.  Measures  of  local  improvements,  local 
facilities,  protective  measures  as  to  safety, 
health,  convenience,  morals,  or  welfare  of  the 
people,  may  be  put  in  force  by  the  States,  up 


22  CHARLES  E.  HUGHES 

to  such  time  as  Congress,  in  response  to  a  con 
viction  that  changed  conditions  have  brought 
about  a  National  need,  sees  fit  to  displace  the 
local  regulations  with  its  own  paramount  and 
exclusive  authority  as  to  any  of  such  matters. 

As  to  the  power  of  the  State  over  intrastate 
rates:  Authority  over  rates  and  commerce 
wholly  within  the  State  belongs  to  the  State, 
and  there  is  reserved  to  the  State  plenary  pow 
er  of  regulation  of  intrastate  rates  and  traffic, 
affected  and  limited  only  by  the  exertion  of  the 
National  power  with  respect  to  interstate  com 
merce  and  its  instruments  as  utilised  also  in  in 
trastate  commerce.  The  authority  of  the  State 
over  intrastate  rates  and  commerce  is  limited  or 
affected  only  by  the  actual  exercise  of  the  para 
mount  National  power,  and  is  not  affected  by 
the  existence  of  an  unused  and  dormant  Federal 
power  of  action  for  the  better  protection  of 
interstate  commerce. 

As  to  the  power  of  Congress  over  intrastate 
commerce  and  rates:  The  Nation  is  equipped 
with  a  power,  supreme  and  plenary,  to  protect 
its  authority  over  National  commerce  from 
being  obstructed  or  destroyed  by  any  opposing 
action,  even  the  rivalries  or  counter-wishes  of 
State  or  local  governments.  Congress  may, 
in  its  discretion,  for  the  better  regulation  and 
control  of  interstate  commerce,  take  authority 
over  intrastate  rates  and  transactions  of  car 
riers  doing  an  interstate  business,  and  may  re- 


NATIONAL  POWER  23 

quire  such  readjustment  of  intrastate  rates  and 
regulations  as  the  paramount  interests  of  the 
National  commerce  may  make  advisable,  even 
though  such  intrastate  rates  and  regulations 
have  been  determined  and  prescribed  by  State 
authority  and  have  the  full  approval  of  the 
carriers  concerned. 

In  the  opinion  prepared  by  Justice  Hughes  in 
the  Minnesota  Rate  Cases,  he  explained  the 
ramifications  of  the  subject  in  great  clearness 
of  detail.  Only  a  part  of  this  classic  opinion 
may  be  quoted  within  the  confines  of  this  vol 
ume  ;  it  merits  reading  in  entirety : 

The  controversy  thus  arises  from  opposing 
conceptions  of  the  fundamental  law,  and  of  the 
scope  and  effect  of  Federal  legislation,  rather 
than  from  differences  with  respect  to  the 
salient  facts. 

For  the  purpose  of  the  present  inquiry,  the 
rates  fixed  by  the  State  must  be  assumed  to  be 
reasonable  rates  so  far  as  intrastate  traffic  is 
concerned;  that  is,  they  must  be  taken  to  be 
rates  which  the  State,  in  the  exercise  of  its 
legislative  judgment,  could  constitutionally  fix 
for  intrastate  transportation  separately  consid 
ered.  If  the  State  rates  are  not  of  this  charac 
ter — a  question  to  be  dealt  with  later — they 
cannot  be  sustained  in  any  event;  but,  assum 
ing  them  to  be  otherwise  valid,  the  decree  be 
low,  with  respect  to  the  present  branch  of  the 
case,  rests  upon  two  grounds:  (1)  That  the 
action  of  the  State  imposes  a  direct  burden 


24  CHARLES  E.  HUGHES 

upon  interstate  commerce;  and  (2)  that  it  is  in 
conflict  with  the  provisions  of  the  Act  to  Regu 
late  Commerce. 

These  grounds  are  distinct.  If  a  State  enact 
ment  imposes  a  direct  burden  upon  inter 
state  commerce,  it  must  fall  regardless  of  Fed 
eral  legislation.  The  point  of  such  an  objection 
is  not  that  Congress  has  acted,  but  that  the 
State  has  directly  restrained  that  which  in  the 
absence  of  Federal  regulation  should  be  free. 
If  the  acts  of  Minnesota  constitute  a  direct 
burden  upon  interstate  commerce,  they  would 
be  invalid  without  regard  to  the  exercise  of 
Federal  authority  touching  the  interstate  rates 
said  to  be  affected.  On  the  other  hand,  if  the 
State,  in  the  absence  of  Federal  legislation, 
would  have  had  the  power  to  prescribe  the  rates 
here  assailed,  the  question  remains  whether  its 
action  is  void  as  being  repugnant  to  the  statute 
which  Congress  has  enacted. 

Prior  to  the  Act  to  Regulate  Commerce,  car 
riers  fixed  their  interstate  rates  free  from  the 
actual  exertion  of  Federal  control;  and  under 
that  Act,  as  it  stood  until  the  amendment  of 
June  29,  1906,  34  Stat.  584,  c.  3591,  the  Inter 
state  Commerce  Commission  had  no  power  to 
prescribe  interstate  rates.  The  States,  how 
ever,  had  long  exercised  the  power  to  establish 
maximum  rates  for  intrastate  transportation. 
Was  this  power,  apart  from  Federal  action, 
subject  to  the  limitation  that  the  State  could 
not  fix  intrastate  rates,  reasonable  as  such, 
generally  throughout  the  State,  but  only  as  to 
such  places  and  in  such  circumstances  that  the 
interstate  business  of  the  carriers  would  not 


NATIONAL  POWER  25 

be  thereby  affected!  That  is,  was  the  State 
debarred  from  fixing  reasonable  rates  on  traffic, 
wholly  internal,  as  to  all  State  points  so  situ 
ated  that  as  a  practical  consequence  the  carriers 
would  have  to  reduce  the  rates  they  had  made 
to  competing'  points  without  the  State,  in  order 
to  maintain  the  volume  of  their  interstate  busi 
ness  or  to  continue  the  parity  of  rates  or  the 
relation  between  rates  as  it  had  previously 
existed?  Was  the  State,  in  prescribing  a  gen 
eral  tariff  of  reasonable  intrastate  rates  other 
wise  within  its  authority,  bound  not  to  go  below 
a  minimum  standard  established  by  the  inter 
state  rates  made  by  the  carriers  within  com 
petitive  districts!  If  the  State  power,  inde 
pendently  of  Federal  legislation,  is  thus  limited, 
the  inquiry  need  proceed  no  further.  Other 
wise  it  must  be  determined  whether  Congress 
has  so  acted  as  to  create  such  a  restriction 
upon  the  State  authority  theretofore  existing. 

(1.)  The  general  principles  governing  the 
exercise  of  State  authority  when  interstate 
commerce  is  affected  are  well  established.  The 
power  of  Congress  to  regulate  commerce  among 
the  several  States  is  supreme  and  plenary.  It 
is  "complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations 
other  than  are  prescribed  in  the  Constitution/' 
The  conviction  of  its  necessity  sprang  from  the 
disastrous  experiences  under  the  Confederation 
when  the  States  vied  in  discriminatory  meas 
ures  against  each  other.  In  order  to  end  these 
evils,  the  grant  in  the  Constitution  conferred 
upon  Congress  an  authority  at  all  times  ade- 


26  CHAELES  E.  HUGHES 

quate  to  secure  the  freedom  of  interstate  com 
mercial  intercourse  from  State  control  and  to 
provide  effective  regulation  of  that  intercourse 
as  the  National  interest  may  demand.  The 
words  "  among  the  several  States "  distinguish 
between  the  commerce  which  concerns  more 
States  than  one  and  that  commerce  which  is  con 
fined  within  one  State  and  does  not  affect  other 
States.  "The  genius  and  character  of  the 
whole  government,"  said  Chief  Justice  Mar 
shall,  "seem  to  be  that  its  action  is  to  be  ap 
plied  to  all  the  external  concerns  of  the  Nation, 
and  to  those  internal  concerns  which  affect  the 
States  generally;  but  not  to  those  which  are 
completely  within  a  particular  State,  which  do 
not  affect  other  States,  and  with  which  it  is  not 
necessary  to  interfere,  for  the  purpose  of  exe 
cuting  some  of  the  general  powers  of  the  gov 
ernment.  The  completely  internal  commerce  of 
a  State,  then,  may  be  considered  as  reserved 
for  the  State  itself."  This  reservation  to  the 
States  manifestly  is  only  of  that  authority 
which  is  consistent  with  and  not  opposed  to  the 
grant  to  Congress.  There  is  no  room  in  our 
scheme  of  government  for  the  assertion  of  State 
power  in  hostility  to  the  authorised  exercise  of 
Federal  power.  The  authority  of  Congress  ex 
tends  to  every  part  of  interstate  commerce,  and 
to  every  instrumentality  or  agency  by  which 
it  is  carried  on;  and  the  full  control  by  Con 
gress  of  the  subjects  committed  to  its  regulation 
is  not  to  be  denied  or  thwarted  by  the  com 
mingling  of  interstate  and  intrastate  opera 
tions.  This  is  not  to  say  that  the  Nation  may 
deal  with  the  internal  concerns  of  the  State,  as 


NATIONAL  POWER  27 

such,  but  that  the  execution  by  Congress  of  its 
constitutional  power  to  regulate  interstate  com 
merce  is  not  limited  by  the  fact  that  intrastate 
transactions  may  have  become  so  interwoven 
therewith  that  the  effective  government  of  the 
former  incidentally  controls  the  latter.  This  con 
clusion  necessarily  results  from  the  supremacy 
of  the  Nationalpower  within  its  appointed  sphere. 

The  grant  in  the  Constitution  of  its  own 
force,  that  is,  without  action  by  Congress,  estab 
lished  the  essential  immunity  of  interstate  com 
mercial  intercourse  from  the  direct  control  of 
the  States  with  respect  to  those  subjects  em 
braced  within  the  grant  which  are  of  such  a 
nature  as  to  demand  that,  if  regulated  at  all, 
their  regulation  should  be  prescribed  by  a 
single  authority.  It  has  repeatedly  been  de 
clared  by  this  Court  that  as  to  those  subjects 
which  require  a  general  system  or  uniformity 
of  regulation  the  power  of  Congress  is  exclu 
sive.  In  other  matters,  admitting  of  diversity 
of  treatment  according  to  the  special  require 
ments  of  local  conditions,  the  States  may  act 
within  their  respective  jurisdictions  until  Con 
gress  sees  fit  to  act;  and  when  Congress  does 
act,  the  exercise  of  its  authority  overrides  all 
conflicting  State  legislation. 

The  principle  which  determines  this  classi 
fication,  underlies  the  doctrine  that  the  States 
cannot  under  any  guise  impose  direct  burdens 
upon  interstate  commerce.  For  this  is  but  to 
hold  that  the  States  are  not  permitted  directly 
to  regulate  or  restrain  that  which  from  its  na 
ture  should  be  under  the  control  of  the  one 
authority  and  be  free  from  restriction  save  as 


28  CHAELES  E.  HUGHES 

it  is  governed  in  the  manner  that  the  national 
legislature  constitutionally  ordains. 

Thus,  the  States  cannot  tax  interstate  com 
merce,  either  by  laying  the  tax  upon  the  busi 
ness  which  constitutes  such  commerce  or  the 
privilege  of  engaging  in  it,  or  upon  the  receipts, 
as  such,  derived  from  it;  or  upon  persons  or 
property  in  transit  in  interstate  commerce. 

They  have  no  power  to  prohibit  interstate 
trade  in  legitimate  articles  of  commerce;  or  to 
discriminate  against  the  products  of  other 
States;  or  to  exclude  from  the  limits  of  the 
State  corporations  or  others  engaged  in  inter 
state  commerce  or  to  fetter  by  conditions  their 
right  to  carry  it  on ;  or  to  prescribe  the  rates  to 
be  charged  for  transportation  from  one  State 
to  another,  or  to  subject  the  operations  of  car 
riers  in  the  course  of  such  transportation  to 
requirements  that  are  unreasonable  or  pass 
beyond  the  bounds  of  suitable  local  protection. 

But  within  these  limitations  there  necessarily 
remains  to  the  States,  until  Congress  acts,  a 
wide  range  for  the  permissible  exercise  of 
power  appropriate  to  their  territorial  jurisdic 
tion  although  interstate  commerce  may  be  af 
fected.  It  extends  to  those  matters  of  a  local 
nature  as  to  which  it  is  impossible  to  derive 
from  the  constitutional  grant  an  intention  that 
they  should  go  uncontrolled  pending  Federal 
intervention.  Thus,  there  are  certain  subjects 
having  the  most  obvious  and  direct  relation  to 
interstate  commerce,  which,  nevertheless,  with 
the  acquiescence  of  Congress,  have  been  con 
trolled  by  State  legislation  from  the  foundation 
of  the  Government  because  of  the  necessity 


NATIONAL  POWER  29 

that  they  should  not  remain  unregulated  and 
that  their  regulation  should  be  adapted  to  vary 
ing  local  exigencies ;  hence,  the  absence  of  regu 
lation  by  Congress  in  such  matters  has  not  im 
ported  that  there  should  be  no  restriction  but 
rather  that  the  States  should  continue  to  sup 
ply  the  needed  rules  until  Congress  should  de 
cide  to  supersede  them.  Further,  it  is  compe 
tent  for  a  State  to  govern  its  internal  com 
merce,  to  provide  local  improvements,  to  create 
and  regulate  local  facilities,  to  adopt  protective 
measures  of  a  reasonable  character  in  the 
interest  of  the  health,  safety,  morals  and  wel 
fare  of  its  people,  although  interstate  com 
merce  may  incidentally  or  indirectly  be  in 
volved.  Our  system  of  government  is  a  prac 
tical  adjustment  by  which  the  National  author 
ity  as  conferred  by  the  Constitution  is  main 
tained  in  its  full  scope  without  unnecessary  loss 
of  local  efficiency.  Where  the  subject  is  pecu 
liarly  one  of  local  concern,  and  from  its  nature 
belongs  to  the  class  with  which  the  State  appro 
priately  deals  in  making  reasonable  provision 
for  local  needs,  it  cannot  be  regarded  as  left  to 
the  unrestrained  will  of  individuals  because 
Congress  has  not  acted,  although  it  may  have 
such  a  relation  to  interstate  commerce  as  to  be 
within  the  reach  of  the  Federal  power.  In 
such  case,  Congress  must  be  the  judge  of  the 
necessity  of  Federal  action.  Its  paramount 
authority  always  enables  it  to  intervene  at  its 
discretion  for  the  complete  and  effective  gov 
ernment  of  that  which  has  been  committed  to 
its  care,  and,  for  this  purpose  and  to  this  extent, 
in  response  to  a  conviction  of  National  need, 


30  CHAELES  E.  HUGHES 

to  displace  local  laws  by  substituting  laws  of  its 
own.  The  successful  working  of  our  constitu 
tional  system  has  thus  been  made  possible. 

The  leading  illustrations  may  be  noted.  Im 
mediately  upon  the  adoption  of  the  Constitu 
tion,  Congress  recognised  the  propriety  of  local 
action  with  respect  to  pilotage,  in  view  of  the 
local  necessities  of  navigation.  It  was  sixty 
years  before  provision  for  Federal  license  of 
pilots  was  made,  and  even  then  port  pilots  were 
not  included.  And  while  Congress  has  full 
power  over  the  subject  and  to  a  certain  extent 
has  prescribed  rules,  it  is  still  in  a  large  meas 
ure  subject  to  the  regulation  of  the  States. 

A  State  is  entitled  to  protect  its  coasts,  to 
improve  its  harbours,  bays  and  streams,  and  to 
construct  dams  and  bridges  across  navigable 
rivers  within  its  limits,  unless  there  is  conflict 
with  some  act  of  Congress.  Plainly,  in  the  case 
of  dams  and  bridges,  interference  with  the 
accustomed  right  of  navigation  may  result. 
But  this  exercise  of  the  important  power  to 
provide  local  improvements  has  not  been  re 
garded  as  constituting  such  a  direct  burden 
upon  intercourse  or  interchange  of  traffic  as  to 
be  repugnant  to  the  Federal  authority  in  its 
dormant  state.  .  .  . 

State  inspection  laws  and  statutes  designed 
to  safeguard  the  inhabitants  of  a  State  from 
fraud  and  imposition  are  valid  when  reason 
able  in  their  requirements  and  not  in  conflict 
with  Federal  rules,  although  they  may  affect 
interstate  commerce  in  their  relation  to  articles 
prepared  for  export  or  by  including  inciden 
tally  those  brought  into  the  State  and  held  for 


NATIONAL  POWER  31 

sale  in  the  original  imported  packages.  And 
for  the  protection  of  its  game  and  the  preserva 
tion  of  a  valuable  food  supply,  the  State  may 
penalise  the  possession  of  game  during  the 
closed  season  whether  obtained  within  the 
State  or  brought  from  abroad. 

Interstate  carriers,  in  the  absence  of  Federal 
statute  providing  a  different  rule,  are  answer 
able  according  to  the  law  of  the  State  for  non- 
feasance  or  misfeasance  within  its  limits. 
Until  the  enactment  by  Congress  of  the  act  of 
April  22,  1908,  the  laws  of  the  States  deter 
mined  the  liability  of  interstate  carriers  by 
railroad  for  injuries  received  by  their  em 
ployes  while  engaged  in  interstate  commerce, 
and  this  was  because  Congress,  although  em 
powered  to  regulate  the  subject,  had  not  acted 
thereon.  In  some  States  the  so-called  fellow- 
servant  rule  obtained ;  in  others  it  had  been  ab 
rogated;  and  it  remained  for  Congress,  in  this 
respect  and  in  other  matters  specified  in  the 
statute,  to  establish  a  uniform  rule.  So,  where 
Congress  has  not  intervened,  State  statutes 
providing  damages  for  wrongful  death  may  be 
enforced  not  only  against  land  carriers  but  also 
against  the  owners  of  vessels  engaged  in  inter 
state  commerce  where  the  wrong  occurs  within 
the  jurisdiction  of  the  State.  And,  until  Con 
gress  legislated  on  the  matter,  liability  for  loss 
of  property,  on  interstate  as  well  as  intrastate 
shipments,  was  subject  to  State  regulation. 
Some  States  allowed  an  exemption  by  contract 
from  all  or  a  part  of  the  common  law  liability; 
others  allowed  no  exemption.  These  differ 
ences  in  the  applicable  laws  created  inequalities 


32  CHAELES  E.  HUGHES 

with  respect  to  interstate  transportation,  but 
each  State  exercised  the  power  inherent  in  its 
territorial  jurisdiction,  and  the  remedy  for  the 
resulting  diversity  lay  with  Congress,  which 
was  free  to  substitute  its  own  regulations ;  and 
this  was  done  in  the  recent  amendment  of  Sec. 
20  of  the  Act  to  Regulate  Commerce.  It  is 
within  the  competency  of  a  State  to  create  and 
enforce  liens  upon  vessels  for  supplies  fur 
nished  under  contracts  not  maritime  in  their 
nature,  and  it  is  no  valid  objection  that  the 
State  law  may  obstruct  the  prosecution  of  a 
voyage  of  an  interstate  character.  It  may  also 
create  liens  for  damages  to  property  on  land 
occasioned  by  negligence  of  vessels.  Cars  em 
ployed  in  interstate  commerce  may  be  seized  by 
attachment  under  State  law,  in  order  to  compel 
the  payment  of  debts.  And  the  legislation  of 
the  State,  safeguarding  life  and  property  and 
promoting  comfort  and  convenience  within  its 
jurisdiction,  may  extend  incidentally  to  the 
operations  of  the  carrier  in  the  conduct  of  inter 
state  business,  provided  it  does  not  subject  that 
business  to  unreasonable  demands  and  is  not 
opposed  to  Federal  legislation.  It  has  also 
been  held  that  the  State  has  the  power  to  for 
bid  the  consolidation  of  State  railroad  corpora 
tions  with  competing  lines  although  both  may 
be  interstate  carriers  and  the  prohibition  may 
have  a  far-reaching  effect  upon  interstate 
commerce. 

Again,  it  is  manifest  that  when  the  legislation 
of  the  State  is  limited  to  internal  commerce  to 
such  degree  that  it  does  not  include  even  inci 
dentally  the  subjects  of  interstate  commerce, 


NATIONAL  POWER  33 

it  is  not  rendered  invalid  because  it  may  affect 
the  latter  commerce  indirectly.  In  the  intimacy 
of  commercial  relations,  much  that  is  done  in 
the  superintendence  of  local  matters  may  have 
an  indirect  bearing  upon  interstate  commerce. 
The  development  of  local  resources  and  the  ex 
tension  of  local  facilities  may  have  a  very  im 
portant  effect  upon  communities  less  favoured 
and  to  an  appreciable  degree  alter  the  course 
of  trade.  The  freedom  of  local  trade  may 
stimulate  interstate  commerce,  while  restrictive 
measures  within  the  police  power  of  the  State 
enacted  exclusively  with  respect  to  internal 
business,  as  distingnished  from  interstate 
traffic,  may  in  their  reflex  or  indirect  influence 
diminish  the  latter  and  reduce  the  volume  of 
articles  transported  into  or  out  of  the  State. 
It  was  an  objection  of  this  sort  that  was  urged 
and  overruled  in  Kidd  v.  Pearson,  128  U.  S.  1, 
to  the  law  of  Iowa  prohibiting  the  manufacture 
and  sale  of  liquor  within  the  State,  save  for 
limited  purposes.  When,  however,  the  State  in 
dealing  with  its  internal  commerce  undertakes 
to  regulate  instrumentalities  which  are  also 
used  in  interstate  commerce,  its  action  is  neces 
sarily  subject  to  the  exercise  by  Congress  of  its 
authority  to  control  such  instrumentalities  so 
far  as  may  be  necessary  for  the  purpose  of  en 
abling  it  to  discharge  its  constitutional  function. 
Within  the  State  power,  then,  in  the  words  of 
Chief  Justice  Marshall,  is  "that  immense  mass 
of  legislation,  which  embraces  everything 
within  the  territory  of  a  State,  not  surrendered 
to  a  general  government :  all  which  can  be  most 
advantageously  exercised  by  the  States  them- 


34  CHAELES  E.  HUGHES 

selves.  Inspection  laws,  quarantine  laws, 
health  laws  of  every  description,  as  well  as  laws 
for  regulating  the  internal  commerce  of  a  State, 
and  those  which  respect  turnpike  roads,  fer 
ries,  &c.,  are  component  parts  of  this  mass. 
No  direct  general  power  over  these  objects  is 
granted  to  Congress:  and,  consequently,  they 
remain  subject  to  State  legislation.  If  the  legis 
lative  power  of  the  Union  can  reach  them,dit 
must  be  for .  National  purposes ;  it  must  be 
where  the  power  is  expressly  given  for  a  spe 
cial  purpose,  or  is  clearly  incidental  to  some 
power  which  is  expressly  given." 

And,  wherever  as  to  such  matters,  under 
these  established  principles.  Congress  may  be 
entitled  to  act,  by  virtue  of  its  power  to  secure 
the  complete  government  of  interstate  com 
merce,  the  State  power  nevertheless  continues 
until  Congress  does  act  and  by  its  valid  inter 
position  limits  the  exercise  of  the  local 
authority. 

(2.)  These  principles  apply  to  the  authority 
of  the  State  to  prescribe  reasonable  maximum 
rates  for  intrastate  transportation. 

State  regulation  of  railroad  rates  began  with 
railroad  transportation.  The  railroads  were 
chartered  by  the  States  and  from  the  outset,  in 
many  charters,  maximum  rates  for  freight  or 
passengers,  or  both,  were  prescribed.  Frequent 
ly — and  this  became  the  more  general  prac 
tice — the  board  of  directors  was  permitted  to 
fix  charges  in  its  discretion,  an  authority  which 
in  numerous  instances  was  made  subject  to  a 
limitation  upon  the  amount  of  net  earnings.  In 


NATIONAL  POWER  35 

several  States  maximum  rates  were  aiso  estab 
lished,  or  the  power  to  alter  rates  was  expressly 
reserved,  by  general  laws.  In  1853,  the  State  of 
New  York  fixed  the  maximum  fare  for  way 
passengers  on  the  railroads  forming  the  line  of 
New  York  Central  at  two  cents  a  mile  and  this 
rate,  extending  to  Buffalo  and  Suspension 
Bridge,  on  the  boundary  of  the  State,  has  con 
tinued  to  the  present  day.  As  a  rule  the  re 
strictions  imposed  by  the  early  legislation  were 
far  from  onerous,  but  they  are  significant  in  the 
assertion  of  the  right  of  control.  More  potent 
than  these  provisions,  in  the  actual  effect  upon 
railroad  tariffs,  was  the  State  canal.  It  is  a 
matter  of  common  knowledge  that  the  traffic  on 
the  trunk  lines  from  the  Atlantic  seaboard  to 
the  West  was  developed  in  competition  with  the 
Erie  Canal,  built,  maintained  and  regulated  by 
the  State  of  New  York  to  promote  its  com 
merce. 

The  authority  of  the  State  to  limit  by  legisla 
tion  the  charges  of  common  carriers  within  its 
borders  was  not  confined  to  the  power  to  impose 
limitations  in  connection  with  grants  of  cor 
porate  privileges.  In  view  of  the  nature  of 
their  business,  they  were  held  subject  to  legis 
lative  control  as  to  the  amount  of  their  charges 
unless  they  were  protected  by  their  contract 
with  the  State.  This  was  decided  in  Chicago, 
Burlington  &  Quincy  R.  E.  Co.  v.  Iowa,  94  U.  S. 
155,  and  other  cases.  The  question  was  pre 
sented  by  acts  of  the  legislatures  of  Illinois, 
Iowa,  Wisconsin  and  Minnesota,  passed  in  the 
years  1871  and  1874  in  response  to  a  general 
movement  for  a  reduction  of  rates.  The  section 


36  CHARLES  E.  HUGHES 

of  the  country  in  which  the  demand  arose  was 
to  a  large  degree  homogeneous  and  one  in 
\vhich  the  flow  of  commerce  was  only  slightly 
concerned  with  State  lines.  But  resort  was  had 
to  the  States  for  relief.  In  the  Mitnn  Case,  the 
Court  had  before  it  the  statute  of  Illinois  gov 
erning  the  grain  warehouses  in  Chicago. 
Through  these  elevators,  located  with  the  river 
harbour  on  the  one  side  and  the  railway  tracks 
on  the  other,  it  was  necessary  according  to  the 
course  of  trade  for  the  product  of  seven  or 
eight  States  of  the  West  to  pass  on  its  way  to 
the  States  on  the  Atlantic  coast.  In  addition  to 
the  denial  of  any  legislative  authority  to  limit 
charges  it  was  urged  that  the  act  was  repug 
nant  to  the  exclusive  power  of  Congress  to 
regulate  interstate  commerce.  The  court  an 
swered  that  the  business  was  carried  on  ex 
clusively  within  the  limits  of  the  State  of  Illi 
nois,  that  its  regulation  was  a  thing  of  domestic 
concern  and  that  "certainly,  until  Congress 
acts  in  reference  to  their  interstate  relations, 
the  State  may  exercise  all  the  powers  of  gov 
ernment  over  them,  even  though  in  so  doing  it 
may  indirectly  operate  upon  commerce  outside 
its  immediate  jurisdiction."  In  the  decision  of 
the  railroad  cases,  above  cited,  the  same  opin 
ion  was  expressed.  The  language  of  the  court, 
however,  went  further  than  to  sustain  the  State 
law  with  respect  to  rates  for  purely  intrastate 
carriage.  Thus,  the  act  of  Wisconsin  covered 
traffic  which  started  within  the  State  and  was 
destined  to  points  outside,  and  this  was  treated 
as  being  within  the  State  power. 

It  became  a  frequent  practice  for  the  States 


NATIONAL  POWER  37 

to  create  commissions,  as  agencies  of  State 
supervision  and  regulation,  and  in  many  in 
stances  the  rate-making  power  was  conferred 
upon  these  bodies.  A  summary  of  such  legis 
lation  is  given  in  Interstate  Commerce  Com 
mission  v.  Chicago,  N.  0.  &  T.  P.  Ry.  Co.,  167 
U.  S.  479,  495,  496.  One  of  these  State  laws, 
that  of  Mississippi,  passed  in  1884,  came  under 
review  in  Stone  v.  Farmers  Loan  &  Trust  Co., 
116  U.  S.  307.  The  suit  was  brought  to  enjoin 
the  Railroad  Commission  from  enforcing  the 
statute  against  the  Mobile  and  Ohio  Railroad 
Company.  It  had  been  incorporated  in  the 
States  of  Alabama,  Mississippi,  Tennessee  and 
Kentucky,  for  the  purpose  of  constructing  a 
railroad  from  Mobile  to  some  point  near  the 
mouth  of  the  Ohio  River  where  it  would  con 
nect  with  another  railroad,  thus  forming  a  con 
tinuous  line  of  interstate  communication  be 
tween  the  Gulf  of  Mexico  and  the  Great  Lakes. 
The  Commission  as  yet  had  not  acted.  Sus 
taining  the  State  power  to  fix  rates  upon  traffic 
wholly  internal,  the  Court  directed  the  dis 
missal  of  the  bill.  The  State,  said  the  Court 
(p.  334),  "may,  beyond  all  question,  by  the  set 
tled  rule  of  decision  in  this  Court,  regulate 
freights  and  fares  for  business  done  exclusively 
within  the  State,  and  it  would  seem  to  be  a  mat 
ter  of  domestic  concern  to  prevent  the  company 
from  discriminating  against  persons  and  places 
in  Mississippi. "  In  the  same  case,  it  was  de 
clared  that  the  power  of  regulation  was  not  a 
power  to  confiscate ;  and  that  under  pretence  of 
regulating  fares  and  freights,  the  States  could 
not  "  require  a  railroad  corporation  to  carry 


38  CHAELES  E.  HUGHES 

persons  or  property  without  reward,"  or  do 
that  which  in  law  amounted  t  i  to  a  taking  of  pri 
vate  property  for  public  use  without  just  com 
pensation,  or  without  due  process  of  law." 
(Id.,  p.  331.) 

In  Wabash,  St.  L.  &  P.  Railway  Co.  v.  Illi 
nois,  supra,  it  was  finally  determined  that  the 
authority  of  the  State  did  not  extend  to  the 
regulation  of  charges  for  interstate  transporta 
tion.  There  the  State  statute  was  aimed  at  dis 
crimination.  It  was  said  to  have  been  violated 
by  the  railroad  company  in  the  case  of  ship 
ments  from  points  within  Illinois  to  the  city  of 
New  York.  The  state  court  had  construed  the 
statute  to  be  binding  as  to  that  part  of  the  inter 
state  Jiaul  which  was  within  the  State  although 
inoperative  beyond  the  boundary.  So  applied, 
this  court  held  the  act  to  be  invalid. 

But  no  doubt  was  entertained  of  the  State's 
authority  to  regulate  rates  for  transportation 
that  was  wholly  intrastate.  And,  in  illustrating 
the  extent  of  State  power  (id.,  p.  564),  the  court 
selected  transportation  across  the  State  from 
Cairo  to  Chicago  and  from  Chicago  to  Alton, 
all  boundary  points  constituting  important  cen 
tres  of  commerce — the  one  on  Lake  Michigan, 
and  the  others  at  the  confluence  of  the  Missis 
sippi  and  Ohio  rivers,  and  of  the  Mississippi 
and  Missouri  rivers,  respectively.  After  re 
viewing  decisions  holding  State  laws  to  be  in 
effective  which  imposed  a  direct  burden  upon 
interstate  commerce,  including  the  cases  of 
the  State  Freight  Tax,  15  Wall.  232;  Hall 
v.  DeCuir,  95  U.  S.  485;  Gloucester  Ferry 
Co.  v.  Pennsylvania,  114  U.  S.  196 ;  Pickard 


NATIONAL  POWER  39 

v.  Pullman  Southern  Car  Co.,  117  TT.  S.  34, 
the  Court  emphasised  the  distinction  with 
respect  to  the  operation  of  the  statute 
upon  domestic  transactions  saying:  "Of  the 
justice  or  propriety  of  the  principle  which  lies 
at  the  foundation  of  the  Illinois  statute  it  is 
not  the  province  of  this  court  to  speak.  As 
restricted  to  a  transportation  which  begins  and 
ends  within  the  limits  of  the  State  it  may  be 
very  just  and  equitable,  and  it  certainly  is  the 
province  of  the  State  legislature  to  determine 
that  question."  (Id.,  p.  577.) 

The  doctrine  was  thus  fully  established  that 
the  State  could  not  prescribe  interstate  rates 
but  could  fix  reasonable  intrastate  rates 
throughout  its  territory.  The  extension  of  rail 
road  facilities  has  been  accompanied  at  every 
step  by  the  assertion  of  this  authority  on  the 
part  of  the  States  and  its  invariable  recognition 
by  this  court.  It  has  never  been  doubted  that 
the  State  could,  if  it  saw  fit,  build  its  own  high 
ways,  canals  and  railroads.  (Railroad  Com 
pany  v.  Maryland,  21  Wall.  456,  470,  471.)  It 
could  build  railroads  traversing  the  entire 
State  and  thus  join  its  border  cities  and  com 
mercial  centres  by  new  highways  of  internal 
intercourse  to  be  always  available  upon  reason 
able  terms.  Such  provision  for  local  traffic 
might  indeed  alter  relative  advantages  in  com 
petition,  and,  by  virtue  of  economic  forces, 
those  engaged  in  interstate  trade  and  trans 
portation  might  find  it  necessary  to  make  read 
justments  extending  from  market  to  market 
through  a  wide  sphere  of  influence;  but  such 
action  of  the  State  would  not  for  that  reason  be 


40  CHAELES  E.  HUGHES 

regarded  as  creating  a  direct  restraint  upon 
interstate  commerce  and  as  thus  transcending 
the  State  power.  Similarly,  the  authority  of 
the  State  to  prescribe  what  shall  be  reasonable 
charges  of  common  carriers  for  intrastate 
transportation,  unless  it  be  limited  by  the  exer 
tion  of  the  constitutional  power  of  Congress, 
is  State-wide.  As  a  power  appropriate  to  the 
territorial  jurisdiction  of  the  State,  it  is  not 
confined  to  a  part  of  the  State,  but  extends 
throughout  the  State — to  its  cities  adjacent  to 
its  boundaries  as  well  as  to  those  in  the  inte 
rior  of  the  State.  To  say  that  this  power  exists, 
but  that  it  may  be  exercised  only  in  prescribing 
rates  that  are  on  an  equal  or  higher  basis  than 
those  that  are  fixed  by  the  carrier  for  interstate 
transportation,  is  to  maintain  the  power  in 
name  while  denying -it  in  fact.  It  is  to  assert 
that  the  exercise  of  the  legislative  judgment  in 
determining  what  shall  be  the  carrier's  charge 
for  the  intrastate  service  is  itself  subject  to 
the  carrier's  will.  But  this  State-wide  author 
ity  controls  the  carrier  and  is  not  controlled  by 
it;  and  the  idea  that  the  power  of  the  State 
to  fix  reasonable  rates  for  its  internal  traffic  is 
limited  by  the  mere  action  of  the  carrier  in 
laying  an  interstate  rate  to  places  across  the 
State's  border,  is  foreign  to  our  jurisprudence. 
If  this  authority  of  the  State  be  restricted,  it 
must  be  by  virtue  of  the  paramount  power  of 
Congress  over  interstate  commerce  and  its  in 
struments;  and,  in  view  of  the  nature  of  the 
subject,  a  limitation  may  not  be  implied  be 
cause  of  a  dormant  Federal  power,  that  is,  one 
which  has  not  been  exerted,  but  can  only  be 


NATIONAL  POWER  41 

found  in  the  actual  exercise  of  Federal  control 
in  such  measure  as  to  exclude  this  action  by  the 
State  which  otherwise  would  clearly  be  within 
its  province. 

(3.)  When  Congress,  in  the  year  1887,  en 
acted  the  Act  to  Regulate  Commerce  (24 
Stat.  379,  c.  104),  it  was  acquainted  with  the 
course  of  the  development  of  railroad  transpor 
tation  and  with  the  exercise  by  the  States  of  the 
rate-making  power.  An  elaborate  report  had 
been  made  to  the  Senate  by  a  committee  author 
ised  to  investigate  the  subject  of  railroad  regu 
lation  in  which  the  nature  and  extent  of  State 
legislation,  including  the  commission  plan,  were 
fully  reviewed  (Senate  Eeport  46,  submitted 
January  6,  1886,  49th  Congress,  1st  session). 
And  it  was  the  fact  that  beyond  the  bounds  of 
State  control  there  lay  a  vast  field  of  unregu 
lated  activity  in  the  conduct  of  interstate  trans 
portation  which  was  found  to  be  the  chief  cause 
of  the  demand  for  Federal  action. 

Congress  carefully  defined  the  scope  of  its 
regulation,  and  expressly  provided  that  it  was 
not  to  extend  to  purely  intrastate  traffic.  In 
the  first  section  of  the  Act  to  Regulate  Com 
merce  there  was  inserted  the  following  proviso : 

"Provided,  however,  That  the  provisions  of 
this  act  shall  not  apply  to  the  transportation 
of  passengers  or  property,  or  to  the  receiving, 
delivering,  storage,  or  handling  of  property, 
wholly  within  one  State,  and  not  shipped  to  or 
from  a  foreign  country  from  or  to  any  State 
or  Territory  as  aforesaid.'' 

When  in  the  year  1906  (act  of  June  29,  1906, 


42  CHAELES  E.  HUGHES 

c.  3591,  34  Stat.  584),  Congress  amended  the  act 
so  as  to  confer  upon  the  Federal  commission 
power  to  prescribe  maximum  interstate  rates, 
the  proviso  in  section  one  was  reenacted. 
Again,  in  1910,  when  the  act  was  extended  to 
embrace  telegraph,  telephone  and  cable  compa 
nies  engaged  in  interstate  business,  the  proviso 
was  once  more  reenacted,  with  an  additional 
clause  so  as  to  exclude  intrastate  messages  from 
the  operation  of  the  statute.  Act  of  June  18, 
1910,  c.  309,  36  Stat.  539  545.  The  proviso  in 
its  present  form  reads : 

"Provided,  however,  That  the  provisions  of 
this  act  shall  not  apply  to  the  transportation  of 
passengers  or  property,  or  to  the  receiving,  de 
livering,  storage,  or  handling  of  property  wholly 
within  one  State  and  not  shipped  to  or  from  a 
foreign  country  from  or  to  any  State  or  Terri 
tory  as  aforesaid,  nor  shall  they  apply  to  the 
transmission  of  messages  by  telephone,  tele 
graph,  or  cable  wholly  within  one  State  and  not 
transmitted  to  or  from  a  foreign  country  from 
or  to  any  State  or  Territory  as  aforesaid/' 

There  was  thus  excluded  from  the  provisions 
of  the  act  that  transportation  which  was 
"wholly  within  one  State/'  with  the  specified 
qualification  where  its  subject  was  going  to  or 
coming  from  a  foreign  country. 

It  is  urged,  however,  that  the  words  of  the 
proviso  are  susceptible  of  a  construction  which 
would  permit  the  provisions  of  section  three  of 
the  act,  prohibiting  carriers  from  giving  an  un 
due  or  unreasonable  preference  or  advantage 
to  any  locality,  to  apply  to  unreasonable  dis 
criminations  between  localities  in  different 


NATIONAL  POWER  43 

States,  as  well  when  arising  from  an  intrastate 
rate  as  compared  with  an  interstate  rate  as 
when  due  to  interstate  rates  exclusively.  If  it 
be  assumed  that  the  statute  should  be  so  con 
strued,  and  it  is  not  necessary  now  to  decide  the 
point,  it  would  inevitably  follow  that  the  con 
trolling  principle  governing  the  enforcement  of 
the  act  should  be  applied  to  such  cases  as  might 
thereby  be  brought  within  its  purview ;  and  the 
question  whether  the  carrier,  in  such  a  case, 
was  giving  an  undue  or  unreasonable  prefer 
ence  or  advantage  to  one  locality  as  against  an 
other,  or  subjecting  any  locality  to  an  undue  or 
unreasonable  prejudice  or  disadvantage,  would 
be  primarily  for  the  investigation  and  determi 
nation  of  the  Interstate  Commerce  Commis 
sion  and  not  for  the  courts.  The  dominating 
purpose  of  the  statute  was  to  secure  conformity 
to  the  prescribed  standards  through  the  ex 
amination  and  appreciation  of  the  complex  facts 
of  transportation  by  the  body  created  for  that 
purpose ;  and,  as  this  court  has  repeatedly  held, 
it  would  be  destructive  of  the  system  of  regula 
tion  defined  by  the  statute  if  the  court  without 
the  preliminary  action  of  the  Commission  were 
to  undertake  to  pass  upon  the  administrative 
questions  which  the  statute  has  primarily  con 
fided  to  it.  In  the  present  case,  there  has  been 
no  finding  by  the  Interstate  Commerce  Commis 
sion  of  unjust  discrimination  violative  of  the 
act ;  and  no  action  of  that  body  is  before  us  for 
review. 

The  question  we  have  now  before  us,  essen 
tially,  is  whether  after  the  passage  of  the  Inter 
state  Commerce  Act,  and  its  amendment,  the 


44  CHAELES  E.  HUGHES 

State  continued  to  possess  the  State-wide  au 
thority  which  it  formerly  enjoyed  to  prescribe 
reasonable  rates  for  its  exclusively  internal 
traffic.  That,  as  it  plainly  appears,  was  the 
nature  of  the  action  taken  by  Minnesota,  and 
the  attack,  however  phrased,  upon  the  rates 
here  involved  as  an  interference  with  interstate 
commerce,  is  in  substance  a  denial  of  that  au 
thority. 

Having  regard  to  the  terms  of  the  Federal 
statute,  the  familiar  range  of  State  action  at 
the  time  it  was  enacted,  the  continued  exercise 
of  State  authority  in  the  same  manner  and  to 
the  same  extent  after  its  enactment,  and  the 
decisions  of  this  court  recognising  and  uphold 
ing  this  authority,  we  find  no  foundation  for 
the  proposition  that  the  Act  to  Regulate  Com 
merce  contemplated  interference  therewith. 

Congress  did  not  undertake  to  say  that  the  in- 
trastate  rates  of  interstate  carriers  should  be 
reasonable  or  to  invest  its  administrative 
agency  with  authority  to  determine  their  rea 
sonableness.  Neither  by  the  original  act  nor 
by  its  amendment,  did  Congress  seek  to  estab 
lish  a  unified  control  over  interstate  and  intra- 
state  rates ;  it  did  not  set  up  a  standard  for  in- 
trastate  rates,  or  prescribe,  or  authorise  the 
Commission  to  prescribe,  either  maximum  or 
minimum  rates  for  intrastate  traffic.  It  cannot 
be  supposed  that  Congress  sought  to  accomplish 
by  indirection  that  which  it  expressly  dis 
claimed,  or  attempted  to  override  the  accus 
tomed  authority  of  the  States  without  the  provi 
sion  of  a  substitute.  On  the  contrary,  the  fix 
ing  of  reasonable  rates  for  intrastate  transpor- 


NATIONAL  POWER  45 

tation  was  left  where  it  had  been  found ;  that  is, 
with  the  States  and  the  agencies  created  by  the 
States  to  deal  with  that  subject. 

How  clear  was  the  purpose  not  to  occupy  the 
field  thus  left  to  the  exercise  of  State  power  is 
shown  by  the  clause  uniformly  inserted  in  the 
numerous  acts  passed  by  Congress  to  authorise 
the  construction  of  railways  across  the  Indian 
Territory.  This  clause,  while  fixing  a  maxi 
mum  passenger  rate,  made  the  laws  of  an  ad 
joining  State  (in  some  cases  Arkansas,  in 
others  Texas,  and  in  others  Kansas)  applicable 
to  the  freight  rates  to  be  charged  within  the 
Territory ;  and  while  the  right  to  regulate  rates 
on  the  authorised  line  of  railroad  was  reserved 
to  Congress  until  a  State  government  should  be 
established,  it  was  expressly  provided  that, 
when  established,  the  State  should  be  entitled 
to  fix  rates  for  intrastate  transportation — the 
right  remaining  with  Congress  to  prescribe 
rates  for  such  transportation  as  should  be  in 
terstate.  Within  a  month  after  the  Act  to  Regu 
late  Commerce  was  enacted,  two  acts  were 
passed  by  Congress  for  this  purpose  with  re 
spect  to  railways  extending  across  the  Territory 
from  the  Texas  to  the  Kansas  boundary.  The 
provision — in  both  cases  in  identical  language — 
save  that  the  one  referred  to  the  laws  of  Texas 
and  the  other  to  the  laws  of  Kansas — was  as 
follows  (act  of  Feb.  24, 1887,  c.  254,  §  4,  24  Stat. 
420;  act  of  March  2,  1887,  c.  319,  §  4,  id.,  447) : 

"SEC.  4.  That  said  railroad  company  shall 
not  charge  the  inhabitants  of  said  Territory  a 

freater  rate  of  freight  than  the  rate  authorised 
y  the  laws  of  the  State  of  Texas  for  services 


46  CHAELES  E.  HUGHES 

or  transportation  of  the  same  kind:  Provided, 
That  passenger  rates  on  said  railway  shall  not 
exceed  three  cents  per  mile.  Congress  hereby 
reserves  the  right  to  regulate  the  charges  for 
freight  and  passengers  on  said  railway,  and 
messages  on  said  telegraph  and  telephone  lines, 
until  a  State  government  or  governments  shall 
exist  in  said  Territory  within  the  limits  of 
which  said  railway,  or  a  part  thereof,  shall  be 
located;  and  then  such  State  government  or 
governments  shall  be  authorised  to  fix  and  regu 
late  the  cost  of  transportation  of  persons  and 
freights  within  their  respective  limits  by  said 
railway;  but  Congress  expressly  reserves  the 
right  to  fix  and  regulate  at  all  times  the  cost  of 
such  transportation  by  said  railway  or  said 
company  whenever  such  transportation  shall 
extend  from  one  State  into  another,  or  shall 
extend  into  more  than  one  State:  Provided, 
however,  That  the  rate  of  such  transportation 
of  passengers,  local  or  inter-State,  shall  not 
exceed  the  rate  above  expressed :  And  provided 
further,  That  said  railway  company  shall  carry 
the  mail  at  such  prices  as  Congress  may  by  law 
provide ;  and  until  such  rate  is  fixed  by  law  the 
Postmaster-General  may  fix  the  rate  of  com 
pensation.  " 

The  same  provision  is  found  in  similar  stat 
utes  passed  in  almost  every  year  from  1884  to 
1902  and  relating  to  lines  intended  to  serve  as 
highways  of  interstate  communication.  When 
Oklahoma  became  a  State,  the  laws  of  other 
States  which  were  referred  to  in  these  various 
acts  ceased  to  be  operative  within  its  limits, 
and  by  virtue  of  its  Statehood  and  with  the 


NATIONAL  POWER  47 

direct  sanction  of  Congress,  it  became  author 
ised  to  prescribe  reasonable  maximum  rates  for 
intrastate  transportation  throughout  its  extent. 
Oklahoma  v.  A.,  T.  &  8.  F.  Ey.  Co.,  220  U.  S. 
277,  285;  Oklahoma  v.  C.,  R.  I.  S  Pac.  Ry.  Co., 
220  U.  S.  302,  306. 

The  decisions  of  this  court  since  the  passage 
of  the  Act  to  Regulate  Commerce  have  uni 
formly  recognised  that  it  was  competent  for  the 
State  to  fix  such  rates,  applicable  throughout 
its  territory.  If  it  be  said  that  in  the  contests 
that  have  been  waged  over  State  laws  during 
the  past  twenty-five  years,  the  question  of  inter 
ference  with  interstate  commerce  by  the  estab 
lishment  of  State-wide  rates  for  intrastate  traf 
fic  has  seldom  been  raised,  this  fact  itself  at 
tests  the  common  conception  of  the  scope  of 
State  authority.  And  the  decisions  recognising 
and  defining  the  State  power  wholly  refute  the 
contention  that  the  making  of  such  rates  either 
constitutes  a  direct  burden  upon  interstate  com 
merce  or  is  repugnant  to  the  Federal  statute. 
*  *  * 

To  suppose,  however,  from  a  review  of  these 
decisions,  that  the  exercise  of  this  acknowl 
edged  power  of  the  State  may  be  permitted  to 
create  an  irreconcilable  conflict  with  the  au 
thority  of  the  Nation,  or  that  through  an  equi 
poise  of  powers  an  effective  control  of  inter 
state  commerce  is  rendered  impossible,  is  to 
overlook  the  dominant  operation  of  the  Consti 
tution  which,  creating  a  Nation,  equipped  it 
with  an  authority,  supreme  and  plenary,  to  con 
trol  National  commerce  and  to  prevent  that 
control,  exercised  in  the  wisdom  of  Congress, 


48  CHARLES  E.  HUGHES 

from  being  obstructed  or  destroyed  by  any  op 
posing  action.  But,  as  we  said  at  the  outset, 
our  system  of  government  is  a  practical  adjust 
ment  by  which  the  National  authority  as  con 
ferred  by  the  Constitution  is  maintained  in  its 
full  scope  without  unnecessary  loss  of  local  ef 
ficiency.  It  thus  clearly  appears  that,  under  the 
established  principles  governing  State  action, 
the  State  of  Minnesota  did  not  transcend  the 
limits  of  its  authority  in  prescribing  the  rates 
here  involved,  assuming  them  to  be  reasonable 
intrastate  rates.  It  exercised  an  authority  ap 
propriate  to  its  territorial  jurisdiction  and  not 
opposed  to  any  action  thus  far  taken  by  Con 
gress. 

The  interblending  of  operations  in  the  con 
duct  of  interstate  and  local  business  by  inter 
state  carriers  is  strongly  pressed  upon  our  at 
tention.  It  is  urged  that  the  same  right-of- 
way,  terminals,  rails,  bridges,  and  stations  are 
provided  for  both  classes  of  traffic;  that  the 
proportion  of  each  sort  of  business  varies  from 
year  to  year  and,  indeed,  from  day  to  day; 
that  no  division  of  the  plant,  no  apportionment 
of  it  between  interstate  and  local  traffic,  can  be 
made  to-day,  which  will  hold  to-morrow;  that 
terminals,  facilities  and  connections  in  one  State 
aid  the  carrier's  entire  business  and  are  an 
element  of  value  with  respect  to  the  whole  prop 
erty  and  the  business  in  other  States ;  that  se 
curities  are  issued  against  the  entire  line  of  the 
carrier  and  cannot  be  divided  by  States;  that 
tariffs  should  be  made  with  a  view  to  all  the 
traffic  of  the  road  and  should  be  fair  as  between 
through  and  short-haul  business ;  and.  that,  in 


NATIONAL  POWER  49 

substance,  no  regulation  of  rates  can  be  just, 
which  does  not  take  into  consideration  the  whole 
field  of  the  carrier's  operations,  irrespective  of 
State  lines.  The  force  of  these  contentions  is 
emphasised  in  these  cases,  and  in  others  of  like 
nature,  by  the  extreme  difficulty  and  intricacy  of 
the  calculations  which  must  be  made  in  the  effort 
to  establish  a  segregation,  of  intrastate  business 
for  the  purpose  of  determining  the  return  to 
which  the  carrier  is  properly  entitled  there 
from. 

But  these  'considerations  are  for  the  prac 
tical  judgment  of  Congress  in  determining  the 
extent  of  the  regulation  necessary  under  exist 
ing  conditions  of  transportation  to  conserve  and 
promote  the  interests  of  interstate  commerce. 
If  the  situation  has  become  such,  by  reason  of 
the  interblending  of  the  interstate  and  intra 
state  operations  of  interstate  carriers,  that  ade 
quate  regulation  of  their  interstate  rates  cannot 
be  maintained  without  imposing  requirements 
with  respect  to  their  intrastate  rates  which  sub 
stantially  affect  the  former,  it  is  for  Congress 
to  determine,  within  the  limits  of  its  constitu 
tional  authority  over  interstate  commerce  and 
its  instruments  the  measure  of  the  regulation  it 
should  supply.  It  is  the  function  of  this  court 
to  interpret  and  apply  the  law  already  enacted, 
but  not  under  the  guise  of  construction  to  pro 
vide  a  more  comprehensive  scheme  of  regula 
tion  than  Congress  has  decided  upon.  Nor,  in 
the  absence  of  Federal  action,  may  we  deny 
effect  to  the  laws  of  the  State  enacted  within 
the  field  which  it  is  entitled  to  occupy  until  its 
authority  is  limited  through  the  exertion  by 


50  CHARLES  E.  HUGHES 

Congress     of     its    paramount     constitutional 
power. 

In  the  so-called  Shreveport  case,  more  ac 
curately  known  as  Houston  and  Texas  Railway 
Company  against  the  United  States*  Justice 
Hughes  declared,  in  part : 

Tt  is  unnecessary  to  repeat  what  has  fre 
quently  been  said  by  this  court  with  respect 
to  the  complete  and  paramount  character  of  the 
power  confided  to  Congress  to  regulate  com 
merce  among  the  several  States.  It  is  of  the  es 
sence  of  this  power  that,  where  it  exists,  it 
dominates.  Interstate  trade  was  not  left  to  be 
destroyed  or  impeded  by  the  rivalries  of  local 
governments.  The  purpose  was  to  make  impos 
sible  the  recurrence  of  the  evils  which  had  over 
whelmed  the  Confederation  and  to  provide  the 
necessary  basis  of  national  unity  by  insuring 
"uniformity  of  regulation  against  conflicting 
and  discriminating  State  legislation."  By  vir 
tue  of  the  comprehensive  terms  of  the  grant, 
the  authority  of  Congress  is  at  all  times  ade 
quate  to  meet  the  varying  exigencies  that  arise 
and  to  protect  the  national  interest  by  securing 
the  freedom  of  interstate  commercial  inter 
course  from  local  control.  .  .  . 

Congress  is  empowered  to  regulate, — that  is, 
to  provide  the  law  for  the  government  of  inter 
state  commerce;  to  enact  "all  appropriate  leg 
islation  "  for  its  "protection  and  advance 
ment  ;"  to  adopt  measures  "to  promote  its 

1  234  U.  S.  Keports,  page  342. 


NATIONAL  POWER  51 

growth  and  insure  its  safety;"  "to  foster,  pro 
tect,  control  and  restrain."  Its  authority,  ex 
tending  to  these  interstate  carriers  as  instru 
ments  of  interstate  commerce,  necessarily  em 
braces  the  right  to  control  their  operations  in 
all  matters  having  such  a  close  and  substantial 
relation  to  interstate  traffic  that  the  control  is 
essential  or  appropriate  to  the  security  of  that 
traffic,  to  the  efficiency  of  the  interstate  service, 
and  to  the  maintenance  of  conditions  under 
which  interstate  commerce  may  be  conducted 
upon  fair  terms  and  without  molestation  or 
hindrance.  As  it  is  competent  for  Congress  to 
legislate  to  these  ends,  unquestionably  it  may 
seek  their  attainment  by  requiring  that  the 
agencies  of  interstate  commerce  shall  not  be 
used  in  such  manner  as  to  cripple,  retard  or 
destroy  it.  The  fact  that  carriers  are  instru 
ments  of  intrastate  commerce,  as  well  as  of 
interstate  commerce,  does  not  derogate  from 
the  complete  and  paramount  authority  of  Con 
gress  over  the  latter  or  preclude  the  Federal 
power  from  being  exerted  to  prevent  the  intra 
state  operations  of  such  carriers  from  being 
made  a  means  of  injury  to  that  which  has  been 
confided  to  Federal  care.  "Wherever  the  inter 
state  and  intrastate  transactions  of  carriers  are 
so  related  that  the  government  of  one  involves 
the  control  of  the  other,  it  is  Congress,  and  not 
the  State,  that  is  entitled  to  prescribe  the  final 
and  dominant  rule,  for  otherwise  Congress 
would  be  denied  the  exercise  of  its  constitu 
tional  authority  and  the  State,  and  not  the  Na 
tion,  would  be  supreme  within  the  national 
field. 


52  CHAELES  E.  HUGHES 

While  these  decisions  sustaining  the  Federal 
power  relate  to  measures  adopted  in  the  inter 
est  of  the  safety  of  persons  and  property,  they 
illustrate  the  principle  that  Congress,  in  the 
exercise  of  its  paramount  power,  may  prevent 
the  common  instrumentalities  of  interstate  and 
intrastate  commercial  intercourse  from  being 
used  in  their  intrastate  operations  to  the  injury 
of  interstate  commerce.  This  is  not  to  say  that 
Congress  possesses  the  authority  to  regulate 
the  internal  commerce  of  a  State,  as  such,  but 
that  it  does  possess  the  power  to  foster  and 
protect  interstate  commerce,  and  to  take  all 
measures  necessary  or  appropriate  to  that  end, 
although  intrastate  transactions  of  interstate 
carriers  may  thereby  be  controlled. 

This  principle  is  applicable  here.  We  find  no 
reason  to  doubt  that  Congress  is  entitled  to  keep 
the  highways  of  interstate  communication  open 
to  interstate  traffic  upon  fair  and  equal  terms. 
That  an  unjust  discrimination  in  the  rates  of  a 
common  carrier,  by  which  one  person  or  locality 
is  unduly  favoured  as  against  another  under 
substantially  similar  conditions  of  traffic,  con 
stitutes  an  evil  is  undeniable;  and  where  this 
evil  consists  in  the  action  of  an  interstate  car 
rier  in  unreasonably  discriminating  against  in 
terstate  traffic  over  its  line,  the  authority  of 
Congress  to  prevent  it  is  equally  clear.  It  is 
immaterial,  so  far  as  the  protecting  power  of 
Congress  is  concerned,  that  the  discrimination 
arises  from  intrastate  rates  as  compared  with 
interstate  rates.  The  use  of  the  instrument  of 
interstate  commerce  in  a  discriminatory  man 
ner  so  as  to  inflict  injury  upon  that  commerce, 


NATIONAL  POWER  53 

or  some  part  thereof,  furnishes  abundant 
ground  for  Federal  intervention.  Nor  can  the 
attempted  exercise  of  State  authority  alter  the 
matter,  where  Congress  has  acted,  for  a  State 
may  not  authorise  the  carrier  to  do  that  which 
Congress  is  entitled  to  forbid  and  has  forbid 
den.  .  .  . 

Congress  thus  defined  the  scope  of  its  regula 
tion  and  provided  that  it  was  not  to  extend  to 
purely  intrastate  traffic.  It  did  not  undertake 
to  authorise  the  Commission  to  prescribe  intra 
state  rates  and  thus  to  establish  a  unified  con 
trol  by  the  exercise  of  the  rate-making  power 
over  both  descriptions  of  traffic.  Undoubtedly 
— in  the  absence  of  a  finding  by  the  Commission 
of  unjust  discrimination — intrastate  rates  were 
left  to  be  fixed  by  the  carrier  -and  subject  to 
the  authority  of  the  States  or  agencies  created 
by  the  States.  This  was  the  question  recently 
decided  by  this  Court  in  the  Minnesota  Rate 
Cases. 

This  assertion  of  the  primacy  of  National 
over  local  interests  and  the  supremacy  of  Na 
tional  over  State  power  in  respect  to  mattQrs 
inevitably  National  in  scope,  did  not,  however, 
lead  Justice  Hughes  to  deny  the  possession  of 
broad  and  plenary  regulative  powers  on  the  part 
of  the  States,  even  as  to  instrumentalities  used 
in  interstate  commerce.  Said  he,  in  Atlantic 
Coast  Line  against  Georgia,1  where  the  carriers 
denied  the  powers  of  the  State  to  regulate 
interstate  trains  as  to  matters  concerning  which 

*234:  U.  S.  Eeports,  page  280. 


54  CHAELES  E.  HUGHES 

Congress  had  not  prescribed  a  National  stand 
ard: 

The  use  of  locomotive  headlights  is  directly 
related  to  safety  in  operation.  It  cannot  be 
denied  that  the  protective  power  of  (the  State) 
government,  subject  to  which  the  carrier  con 
ducts  its  business  and  manages  its  property, 
extends  as  well  to  the  regulation  of  this  part  of 
the  carrier's  equipment  as  to  apparatus  for 
heating  cars  or  to  automatic  couplers.  The 
legislature  may  require  an  adequate  headlight, 
and  whether  the  carrier's  practice  is  properly 
conducive  to  safety,  or  a  new  method  affording 
greater  protection  should  be  substituted,  is  a 
matter  for  legislative  judgment.  But  it  is  in 
sisted  that  the  legislature  has  gone  beyond  the 
limits  of  its  authority  in  making  the  specific 
requirements  contained  in  the  act  as  to  the 
character  and  power  of  the  light  and  the  di 
mensions  of  the  reflector.  This  argument  ig 
nores  the  established  principle  that  if  its  action 
is  not  arbitrary — is  reasonably  related  to  a 
proper  purpose — the  legislature  may  select  the 
means  which  it  deems  to  be  appropriate  to  the 
end  to  be  achieved.  It  is  not  bound  to  content 
itself  with  general  directions  when  it  considers 
that  more  detailed  measures  are  necessary  to 
attain  a  legitimate  object.  Particularisation 
has  had  many  familiar  illustrations  in  cases 
where  there  has  been  a  conviction  of  the  need 
of  it,  as,  for  example,  in  building  regulations 
and  in  provisions  for  safeguarding  persons  in 
the  use  of  dangerous  machinery.  So  far  as  gov 
ernmental  power  is  concerned,  we  know  of  no 


NATIONAL  POWER  55 

ground  for  an  exception  in  the  case  of  a  loco 
motive  headlight. 

It  cannot  be  said  that  the  legislature  acted 
arbitrarily  in  prescribing  electric  light,  in  pref 
erence  to  others,  or  that,  having  made  this  se 
lection,  it  was  not  entitled  to  impose  minimum 
requirements  to  be  observed  in  the  use  of  the 
light.  Witnesses  for  the  plaintiff  in  error,  in 
cluding  its  general  superintendent  of  motive 
power  and  other  employes  holding  important 
positions  and  conversant  with  the  exigencies  of 
operation,  presented  their  objections  to  the  use 
of  the  electric  headlight.  Locomotive  engineers 
who  for  many  years  had  driven  locomotives 
with  such  a  light  testified  for  the  State,  ex 
pressing  a  decided  opinion  in  favour  of  the  use 
of  electric  headlights  in  the  interest  of  safe 
operation  and  submitting  their  views  in  answer 
to  the  objections  that  had  been  urged.  Assum 
ing  that  there  is  room  for  difference  of  opinion, 
this  fact  does  not  preclude  the  exercise  of  the 
legislative  discretion.  So  far  as  the  question 
was  one  simply  of  expediency — as  to  the  best 
method  to  provide  the  desired  security — it  was 
within  the  competency  of  the  legislature  to  de 
cide  it.  ... 

If  there  is  a  conflict  in  such  local  regulations, 
by  which  interstate  commerce  may  be  incon 
venienced — if  there  appears  to  be  need  of  stand 
ardisation  of  safety  appliances  and  of  provid 
ing  rules  of  operation  which  will  govern  the 
entire  interstate  road  irrespective  of  State 
boundaries — there  is  a  simple  remedy;  and  it 
cannot  be  assumed  that  it  will  not  be  readily 
applied  if  there  be  real  occasion  for  it.  That 


56  CHARLES  E.  HUGHES 

remedy  does  not  rest  in  a  denial  to  the  State, 
in  the  absence  of  conflicting  Federal  action,  of 
its  power  to  protect  life  and  property  within  its 
borders,  but  it  does  lie  in  the  exercise  of  the 
paramount  authority  of  Congress  in  its  control 
of  interstate  commerce  to  establish  such  regula 
tions  as  in  its  judgment  may  be  deemed  ap 
propriate  and  sufficient.  Congress,  when  it 
pleases,  may  give  the  rule  and  make  the  stand 
ard  to  be  observed  on  the  interstate  highway. 

In  the  address  which  he  gave  before  the  New 
York  State  Bar  Association  last  January,  Jus 
tice  Hughes  commented  upon  the  legal  bearings 
of  the  whole  subject  with  perhaps  greater  free 
dom  than  within  the  limitations  of  a  judicial 
opinion : 

With  Congress  using  widely  its  authority 
over  interstate  commercial  intercourse  and  the 
States  creating  new  obligations  and  remedies, 
the  difficulty  and  importance  of  the  work  of  the 
courts  as  the  interpreters  of  constitutions  and 
laws  has  enormously  increased.  There  has 
never  been  a  time  when  that  work,  in  view  of 
the  intimate  relation  of  legislation  to  commerce 
and  industry,  has  been  of  more  vital  concern 
to  the  country  than  it  is  to-day.  It  is  plain  that 
our  dual  system  of  government  is  being  sub 
jected  to  a  new  and  severe  strain.  Congress  is 
constantly  defining  the  scope  of  its  legislation 
by  reference  to  the  commerce  clause,  while  on 
the  other  hand  the  States,  with  respect  to  al 
most  every  important  activity,  press  their  ao- 


NATIONAL  POWER  57 

tion  to  the  constitutional  limit  of  State  power. 
Thus  the  Interstate  Commerce  Act  fastens  upon 
interstate  transportation,  while  statutes  with 
similar  purpose  and  thoroughness  deal  with  the 
transportation  that  is  intrastate,  conducted  by 
the  same  carriers.  The  Federal  Employers' 
Liability  Act  applies  to  persons  suffering  in 
jury  while  employed  by  railroads  in  interstate 
commerce,  and  other  acts  define  what  it  shall 
be  unlawful  for  any  person  to  do  "  in  the  course 
of  such  commerce, "  either  "directly  or  indi 
rectly.  "  Now,  as  has  been  aptly  said,  inter 
state  commerce  is  a  "practical  conception";  it 
is  not  determined  by  mere  forms  of  contracts,  or 
by  bills  of  lading,  or  by  mere  technicalities  of 
any  sort,  that  is,  by  anything  short  of  the  sub 
stance  of  the  transaction.  But,  while  this  is 
true,  interstate  commerce  is  a  department  of 
practical  affairs  which  as  a  rule  is  segregated 
only  in  legal  theory.  It  has  no  separate  exist 
ence  in  economics  and  is  not  separately  main 
tained  by  transportation  companies  or  by  those 
engaged  in  trade.  When  is  an  employe  of  a 
railroad  company  engaged  in  interstate  com 
merce  ?  There  may  be  no  distinction  in  the  mere 
physical  conditions  of  his  work  or  in  his  wages. 
Train  crews  handle  interstate  and  intrastate 
traffic  indiscriminately ;  and  the  practical  serv 
ice  of  the  carrier  is  determined  by  the  nature 
of  the  haul,  not  by  the  presence  or  absence  of 
a  State  boundary.  If,  while  in  his  usual  work 
as  a  train  hand,  there  is  an  interstate  passenger 
on  the  train,  or  goods  in  a  freight  car  are  in  the 
actual  course  of  an  interstate  journey,  his  rights 
and  the  correlative  liability  of  his  employer  in 


58  CHAELES  E.  HUGHES 

case  of  injury  through  the  latter 's  neglect  are 
governed  by  Federal  law ;  but  if  the  passengers 
or  goods  are  being  moved  solely  in  intrastate 
transportation,  the  State  law  alone  determines 
right  and  remedy.  Again,  the  same  right  of 
way,  terminals,  tunnels  and  bridges  are  used 
for  both  classes  of  traffic.  The  railroad  has 
economically  but  one  value ;  but  this  value  must 
in  some  way  be  apportioned  to  determine 
whether  laws  of  different  jurisdictions  permit  a 
fair  return  upon  that  value,  which  for  legal 
purposes  must  be  assigned  to  each.  Certain 
rate  structures  which  from  the  standpoint  of 
economic  principle  and  practical  judgment 
are  single,  are  split  into  legal  divisions  for 
the  purpose  not  of  academic  discussion  but 
of  vital  control.  Our  recent  reports  abund 
antly  show  that  questions  of  utmost  nicety  are 
constantly  being  presented  in  the  application 
of  new  statutes,  and  evidence  the  extreme 
difficulty  of  the  work  of  carrying  out  the  will  of 
Congress  over  the  activities  within  its  control 
while  at  the  same  time  avoiding  encroachment 
upon  the  State  field.  This  difficulty  is  sure  to 
be  very  keenly  appreciated  in  whatever  fields  of 
activity  the  regulating  power  of  government 
takes  hold.  It  is  the  problem  of  many  govern 
ments,  within  one  Nation,  dealing  with  portions 
of  an  activity  which  has  economic  unity.  The 
import  of  this  should  be  clear  to  every  disinter 
ested  observer;  a  practical  people  with  bound 
less  opportunities  and  with  aspirations  uncon- 
fined  will  not  be  disposed  to  permit  legitimate 
progress  to  be  needlessly  restrained  or  gov 
erned  to  defeat  itself  by  its  own  complexity. 


NATIONAL  POWER  59 

His  aversion  to  a  Nationalism  which,  for  its 
own  sake,  makes  war  on  the  autonomy  of  State 
and  local  sovereignties  and  seeks  to  transfer 
purely  local  concerns  to  a  centralised  and  "bu 
reaucratic"  supervision  from  the  Federal  capi 
tal,  was  trenchantly  expressed  in  the  same 
address : 

But  in  the  face  of  the  difficulties  already  upon 
us,  and  destined  to  increase  in  number  and  grav 
ity,  we  remain  convinced  of  the  necessity  of 
autonomous  local  governments.  An  over-cen 
tralised  government  would  break  down  of  its 
own  weight.  It  is  almost  impossible  even  now 
for  Congress  in  well-nigh  continuous  session  to 
keep  up  with  its  duties,  and  we  can  readily  im 
agine  what  the  future  may  have  in  store  in  legis 
lative  concerns.  If  there  were  centred  in  Wash 
ington  a  single  source  of  authority  from  which 
proceeded  all  the  governmental  forces  of  the 
country — created  and  subject  to  change  at  its 
will — upon  whose  permission  all  legislative  and 
administrative  action  depended  throughput  the 
length  and  breadth  of  the  land,  I  think  we 
should  swiftly  demand  and  set  up  a  different 
system.  If  we  did  not  have  States  we 
should  speedily  have  to  create  them.  We  now 
have  them,  with  the  advantages  of  historic 
background,  and  in  meeting  the  serious  ques 
tions  of  local  administration  we  at  least  have  the 
advantage  of  ineradicable  sentiment  and  cher 
ished  traditions.  And  we  may  well  congratulate 
ourselves  that  the  circumstances  of  the  forma 
tion  of  a  more  perfect  Union  has  given  us 


60  CHARLES  E.  HUGHES 

neither  a  confederation  of  States,  nor  a  single 
centralised  government,  but  a  Nation — and  yet 
a  Union  of  States  each  autonomous  in  its  local 
concerns.  To  preserve  the  essential  elements 
of  this  system — without  permitting  necessary 
local  autonomy  to  be  destroyed  by  the  unwar 
ranted  assertion  of  Federal  power,  and  without 
allowing  State  action  to  throw  out  of  gear  the 
requisite  machinery  for  unity  of  control  in 
National  concerns— demands  the  most  intelli 
gent  appreciation  of  all  the  facts  of  our  inter 
related  affairs  and  far  more  careful  efforts  in 
co-operation  than  we  have  hitherto  put  forth. 

Within  its  sphere  as  defined  by  the  Consti 
tution,  the  Nation  is  supreme.  The  question  is 
simply  of  the  extent  of  the  Federal  power  as 
granted;  where  there  is  authorised  exercise  of 
that  power  there  is  no  reserved  power  to  nullify 
it — a  principle  obviously  essential  to  the  main 
tenance  of  national  integrity,  yet  continually 
calling  for  new  applications.  Thus,  regulations 
required  in  the  exercise  of  the  judgment  com 
mitted  to  Congress  for  the  protection  of  inter 
state  commerce  cannot  be  made  nugatory  by 
the  mere  commingling  of  interstate  and  intra- 
state  transactions.  To  illustrate,  when  the  va 
lidity  of  the  Hours  of  Service  Act  was  under 
consideration,  it  was  emphasised  that  the  inter 
state  and  intrastate  transactions  of  the  carriers 
were  so  interwoven  that  it  was  utterly  imprac 
ticable  for  them  to  divide  their  employes  so 
that  those  engaged  in  interstate  commerce 
should  be  confined  to  that  commerce  exclusively. 
But  this  fact,  it  was  held,  did  not  preclude  the 
exercise  of  Federal  power.  As  Congress  for 


NATIONAL  POWER  61 

the  purpose  of  promoting  safety  through  the 
reduction  of  the  risks  incident  to  excessive 
strain  could  limit  the  hours  of  labour  of  those 
engaged  in  interstate  transportation,  it  neces 
sarily  followed  that  this  exertion  of  its  author 
ity  could  not  be  frustrated  by  prolonging  the 
period  of  service  through  other  requirements 
of  the  carriers  or  by  intermingling  the  duties 
which  related  to  interstate  and  intrastate 
operations.  So  also,  Congress  has  taken 
account  of  the  practical  exigencies  of  traffic, 
and  of  the  interdependence  of  train  move 
ments,  and  has  insisted  that  cars  moving  on 
railroads  that  are  highways  of  interstate  com 
merce  shall  be  suitably  equipped  to  the  end  that 
interstate  traffic  shall  not  be  exposed  to  unneces 
sary  danger.  Again,  Congress  has  asserted  its 
authority  to  compel  interstate  carriers  to  give 
to  interstate  traffic  reasonable  rates  without  un 
just  discrimination;  and  the  question  whether 
interstate  trade  was  left  to  be  destroyed  by 
hostile  discrimination  under  the  authority  of 
local  governments  was  decisively  answered 
when  the  Constitution  superseded  the  Articles 
of  Confederation.  On  the  other  hand,  while 
there  is  this  supremacy  of  national  power  with 
in  the  national  sphere,  it  was  never  intended 
that  throughout  the  extent  of  authorised  Fed 
eral  action  there  could  be,  in  the  absence  of  the 
actual  exercise  of  Federal  power,  no  employ 
ment  of  State  authority.  There  are  un 
doubtedly  many  matters  of  such  a  na 
ture  that  but  one  authority  can  be  exercised 
over  them,  and  the  Federal  power  must  be  exer 
cised  or  none  at  all.  But  along  with  these  are 


62  CHAELES  E.  HUGHES 

a  host  of  local  necessities  which  from  the  be 
ginning  were  viewed  as  properly  engaging  the 
attention  of  the  States  in  the  protection  of  the 
interests  of  their  people,  albeit  interstate  com 
merce  was  incidentally  affected,  until  Congress 
should  act  and  by  the  exertion  of  its  consti 
tutional  authority  supersede  State  laws  by  its 
own  requirements.  Varying  local  exigencies 
have  thus  been  met.  Consequently,  in  a  large 
measure  the  Federal  power  has  been  dormant — 
and  its  exercise  has  awaited  the  revelation  of 
national  need  and  the  pressure  of  a  gradually 
forming  national  sentiment. 

In  the  same  address,  Justice  Hughes  hinted 
at  constructive  lines  along  which  he  thought 
the  resources  of  the  executive  and  legislative 
departments  of  government  might  most  help 
fully  be  employed — lines  which  he  characterised 
as  "the  resources  of  accommodation"  under 
our  dual  system : 

But  important  as  is  the  judicial  function  in 
maintaining  the  integrity  of  the  constitutional 
system,  it  should  not  be  overburdened,  nor 
should  work  be  expected  of  it  which  should 
otherwise  be  performed.  No  opportunity  should 
be  neglected  to  secure  that  wise  co-operation 
which  in  our  network  of  activities  can  go  far 
to  avoid  unnecessary  friction.  While  I  cannot 
enter  the  domain  of  legislative  policy,  may  I 
suggest  that  the  resources  of  accommodation 
have  not  been  exhausted;  indeed,  they  have 
scarcely  been  touched.  Very  often  the  differ- 


NATIONAL  POWER  63 

ences  that  exist  between  State  and  Federal  laws 
governing  different  phases  of  the  same  gen 
eral  activity  are  due  more  to  accident  or  lack  of 
forethought  than  to  difference  in  deliberate  pur 
pose.  We  have  had  in  our  States  too  little  re 
gard  for  the  remoter  and  indirect  consequences 
of  legislation.  There  has  been,  perhaps,  too 
much  thought  of  questions  of  abstract  power 
rather  than  of  its  sagacious  use  by  those  who 
after  all  must  have  a  common  prosperity  or 
none  at  all.  Some  progress,  very  gratifying, 
has  been  made  toward  unifying  our  commer 
cial  law  by  the  enactment  of  uniform  acts  in 
many  States,  relating  to  negotiable  instruments, 
warehouse  receipts,  bills  of  lading  and  sales. 
But  it  should  be  possible  to  do  far  more  than 
has  been  done  in  the  promotion  of  agreement 
rather  than  diversity,  inasmuch  as  our  people 
are  to  a  very  great  extent  inspired  by  the  same 
ideals.  When  Congress  has  legislated  on  a  sub 
ject  within  its  province  variations  in  statutes 
as  to  corresponding  activities  in  the  local  field 
may  well  be  examined  to  see  whether  such  varia 
tions  are  worth  while,  or  whether  it  would  not 
be  possible  to  secure  harmony  without  sacrifice 
of  any  real  local  interest.  The  various  admin 
istrative  commissions  easily  provide  opportuni 
ties  for  deliberation  and  conference  which 
should  be  of  inestimable  importance  in  avoiding 
unfortunate  differences,  particularly  when  the 
legislative  policies  underlying  administrative 
action  appear  to  be  identical.  Our  administra 
tive  law  is  comparatively  of  recent  develop 
ment  and  we  have  hardly  begun  to  consider  the 
practical  needs  and  advantages  which  go  with 


64  CHAELES  E.  HUGHES 

the  creation  of  such  agencies  in  Nation  and 
State.  In  most  cases  differences  yield  to  a  com 
plete  understanding  of  facts,  and  equipment  for 
competent  investigations  should  diminish  the 
dangers  of  conflict.  It  would- seem  to  be  clear 
that  bodies  of  intelligent  men  dealing  as  ex 
perts,  for  example,  with  the  interstate  and  in- 
trastate  phases  of  traffic  situations,  should  be 
in  practical  accord,  or  that  at  least  such  differ 
ences  as  may  appear  to  exist  should  be  put  to 
the  test  of  mutual  statement,  analysis  and  con 
sultation  under  plans  more  definitely  designed 
to  prevent  unnecessary  divergencies.  I  do  not 
mean  to  underestimate  such  voluntary  efforts 
as  have  been  made  in  this  direction ;  nor  shall 
I  presume  to  suggest  the  details  of  possible  im 
provements  in  administrative  schemes  with  this 
end  in  view.  But  I  should  think  that  many  of 
our  difficulties  might  be  solved  by  perfecting 
the  machinery  of  administration  with  the  direct 
purpose  of  promoting  harmony*  of  action*  in 
dealing  with  those  activities  which  are  con 
ducted  in  the  world  of  affairs  as  parts  of  the 
same  enterprises.  It  should  not  be  deemed  im 
practicable  to  secure  the  protective  purposes 
of  State  and  Nation  without  injury  or  needless 
embarrassment  to  the  honest  undertakings  upon 
which  both  depend. 

Another  epoch-marking  development  in  the 
scope  of  National  action  for  public  health,  pub 
lic  morals,  public  safety,  public  welfare,  and 
the  like,  has  come  about  through  a  judicial 
clearing  of  the  way  for  an  increased  exercise 


NATIONAL  POWER  65 

of  the  Federal  power  over  interstate  commerce 
along  lines  akin  to  "police-power"  regulations. 
That  is  to  say,  the  Supreme  Court  has,  during 
the  past  five  years,  very  clearly  pointed  the  way 
for  the  nation-wide  accomplishment  of  legisla 
tive  purposes  having  to  do  with  the  public  wel 
fare,  through  the  application  of  wholesome 
regulatory  restraints  to  the  use  of  the  channels 
and  instrumentalities  of  interstate  commerce. 
If  Congress  wished  to  give  nation-wide  effec 
tiveness  to  a  measure  vitally  conserving  the 
public  health,  morals,  or  welfare,  the  way  was 
opened  to  the  doing  of  this  through  denying  to 
those  engaged  in  activities  hostile  to  the  legis 
lative  purpose  the  right  to  use  the  channels  of 
interstate  transportation. 

This  extension  of  National  regulatory  power 
is  beyond  doubt  one  of  the  most  far-reaching  in 
the  evolution  of  American  constitutional  law, 
and  the  official  reports  show  Justice  Hughes' 
vital  relation  to  the  progressive  development 
of  this  wholesome  doctrine.  "Why  should  not 
worthless  stuff,  purveyed  under  false  labels  as 
cures,  be  made  contraband  of  commerce, — as 
well  as  lottery  tickets?"  he  impressively  in 
quired,  in  his  dissenting  opinion  in  the  Johnson 
case.1  The  Supreme  Court  had  upheld  the 
power  of  Congress,  in  the  interests  of  public 
morals,  to  exclude  lottery  tickets  from  the 
mails  and  from  interstate  commerce.2  "If  an 

1  U.  8.  vs.  Johnson  (221  U.  S.  Reports,  page  488). 

2  Champion  vs.  Ames  (188  U.  S.  Reports,  page  331). 


66  CHAELES  E.  HUGHES 

article  is  shipped  in  interstate  commerce,  bear 
ing  on  its  label  a  representation  that  it  is  a  cure 
for  a  given  disease,  when  on  a  showing  of  the 
facts  there  would  be  a  unanimous  agreement 
that  it  was  absolutely  worthless  and  an  out  and 
out  cheat,"  Justice  Hughes  felt  that  Congress 
had  denned  this  to  be  a  "mis-branding"  of  the 
article,  and  that  Congress  had  the  power  to  con 
serve  public  health,  safety,  morals  and  welfare, 
by  preventing  the  interstate  shipment  of  so  sin 
ister  a  menace  to  public  health  and  security  in 
medical  treatment. 

In  the  celebrated  Hipolite  Egg  case  l  in  1911, 
the  Supreme  Court  held  the  object  of  the  Food 
and  Drugs  Act  to  be  "to  keep  adulterated  ar 
ticles  out  of  the  channels  of  interstate  com 
merce,  or,  if  they  enter  such  commerce,  to  con 
demn  them  while  being  transported  or  when 
they  have  reached  their  destination,  provided 
they  remain  unloaded,  unsold,  or  in  original 
unbroken  packages."  It  declared  that  while 
"in  the  original,  unbroken  packages,  they 
carry  their  own  identification  of  contraband  of 
law."  Concerning  this  power  of  Congress  to 
declare  to  be  "contraband  of  law"  and  "out 
laws  of  commerce"  any  articles  whose  inter 
state  transportation  would  accomplish  results 
repugnant  to  the  public  health,  morals  or  wel 
fare,"  the  Supreme  Court,  Justice  Hughes  con 
curring,  declared : 

1 220  U.  S.  Beports,  page  45. 


NATIONAL  POWER  67 

The  statute  rests,  of  course,  upon  the  power 
of  Congress  to  regulate  interstate  commerce, 
and,  defining  that  power,  we  have  said  that  no 
trade  can  be  carried  on  between  the  States  to 
which  it  does  not  extend,  and  have  further  said 
that  it  is  complete  in  itself,  subject  to  no  lim 
itations  except  those  found  in  the  Constitution. 
We  are  dealing,  it  must  be  remembered,  with 
illicit  articles — articles  which  the  law  seeks  to 
keep  out  of  commerce,  because  they  are  debased 
by  adulteration,  and  which  law  punishes  them 
(if  we  may  so  express  ourselves)  and  the  ship 
per  of  them.  .  .  .  The  question  here  is  whether 
articles  which  are  outlaws  of  commerce  may  be 
seized  wherever  found.  .  .  .  Their  confiscation 
or  destruction  is  the  especial  concern  of  the 
law. 

In  Hoke,  against  the  United  States  * — one  of 
the  so-called  "  white  slave "  cases — the  power 
of  Congress  to  regulate  interstate  commerce  in 
the  interests  of  the  public  morality  and  welfare 
was  further  commented  upon  by  a  unanimous 
Court,  Justice  Hughes  concurring: 

Congress  is  given  power  "to  regulate  com 
merce  with  the  foreign  nations  and  among  the 
several  States."  The  power  is  direct;  there  is 
no  word  of  limitation  in  it;  and  its  broad  and 
universal  scope  has  been  so  often  declared  as 
to  make  repetition  unnecessary.  .  .  .  Com 
merce  among  the  States,  we  have'  said,  consists 
of  intercourse  and  traffic  between  their  citizens, 

1 227  U.  S.  Eeports,  page  308. 


68  CHARLES  E.  HUGHES 

and  includes  the  transportation  of  persons  and 
property.  .  .  .  There  is  unquestionably  a  con 
trol  in  the  States  over  the  morals  of  their  cit 
izens  .  .  .  but  there  is  a  domain  which  the 
States  cannot  reach  and  over  which  Congress 
alone  has  power.  ...  Its  exertion  does  not  en 
croach  upon  the  jurisdiction  of  the  States.  .  .  . 

Our  dual  form  of  government  has  its  perplex 
ities,  State  and  Nation  having  different  spheres 
of  jurisdiction,  as  we  have  said,  but  it  must  be 
kept  in  mind  that  we  are  one  people;  and  the 
powers  reserved  to  the  States  and  those  con 
ferred  on  the  Nation  are  adapted  to  be  exer 
cised,  either  independently  or  concurrently,  to 
promote  the  general  welfare,  material  and 
moral.  This  is  the  effect  of  the  decisions,  and 
surely  if  the  facility  of  interstate  transporta 
tion  can  be  taken  away  from  the  demoralisation 
of  lotteries,  the  debasement  of  obscene  litera 
ture,  the  contagion  of  diseased  cattle  or  per 
sons,  the  impurity  of  food  and  drugs,  the  like 
facility  can  be  taken  away  from  the  systematic 
enticement  to  and  the  enslavement  in  prostitu 
tion  and  debauchery  of  women,  and,  more  in 
sistently,  of  girls. 

This  is  the  aim  of  the  law  expressed  in  broad 
generalisation ;  and  motives  are  made  of  deter 
mining  consequence.  Motives  executed  by  ac 
tions  may  make  it  the  concern  of  Government 
to  exert  its  powers.  Eight  purpose  and  fair 
trading  need  no  restrictive  regulation,  but  let 
them  be  transgressed  and  penalties  and  prohi 
bitions  must  be  applied.  We  may  illustrate 
again  by  the  Pure  Food  and  Drugs  Act.  Let 
an  article  be  debased  by  adulteration,  let  it  be 


NATIONAL  POWER  69 

misrepresented  by  false  branding,  and  Con 
gress  may  exercise  its  prohibitive  power.  It 
may  be  that  Congress  could  not  prohibit  the 
manufacture  of  the  article  in  a  State.  It  may 
be  that  Congress  could  not  prohibit  in  all  of  its 
conditions  its  sale  within  a  State.  But  Congress 
may  prohibit  its  transportation  between  the 
States,  and  by  that  means  defeat  the  motives 
and  evils  of  its  manufacture. 

The  question  which  Justice  Hughes  asked  in 
his  dissenting  opinion  in  the  Johnson  case  was 
soon  answered  by  Congress.  The  extension  for 
which  he  had  contended  was  made  effective. 
Drugs  or  purported  medicines  misbranded  as 
to  their  curative  properties  were  made  "con 
traband  of  law,"  "outlaws  of  commerce,"  by 
the  Sherley  Amendment,  and  Justice  Hughes, 
within  the  present  year,  wrote  for  a  unanimous 
Court l  in  applying  to  a  purported  ' l  tubercu 
losis  cure"  the  Congressional  enactment  and 
what  he  called  "the  simple  principle  that  Con 
gress  is  not  to  be  denied  the  exercise  of  its  con 
stitutional  authority  over  interstate  commerce, 
and  its  power  to  adopt  not  only  means  neces 
sary  but  convenient  to  its  exercise,  because 
these  means  may  have  the  quality  of  police  reg 
ulations  ' ' — a  statement  which  may  be  regarded 
as  representing  the  limit  thus  far  of  judicial 
indication  of  the  scope  of  Congressional  au 
thority  under  this  doctrine. 

1  Seven  Cases  of  Eckman's  Alterative  vs.  U.  S.   (239  U.  S, 
Keports,  page  510), 


70  CHARLES  E.  HUGHES 

The  belief  is  general,  among  students  of  the 
law,  that  the  United  States  stands  only  at  the 
beginning  of  the  exercise  of  increased  Federal 
power  for  public  ends,  through  legislation  en 
acted  along  the  lines  indicated  by  Justice 
Hughes  and  his  colleagues.  Already  the  devel 
opment  of  the  doctrine  within  the  past  two  or 
three  years  has  had  a  notable  effect  upon  the 
trend  of  legislation.  An  instance  is  the  way  in 
which  a  constitutional  basis  has  been  revealed 
for  a  National  child-labour  law,  at  a  time  when 
the  "Cry  of  the  Children "  has  as  much  mean 
ing  for  us  as  for  our  grandfathers,  whose 
hearts  it  was  written  to  stir,  more  than  seventy 
years  ago.  As  it  was  Senator  Beveridge  who 
was  the  pioneer  in  arousing  a  nation-wide  inter 
est  in  the  formulation  of  such  a  law,  so  it  has 
been  the  statesmen  of  the  Supreme  Court  who 
have  pointed  the  way  for  it.  The  Beveridge 
proposal  aroused  antagonism — or  at  least  gave 
basis  for  interested  antagonism — because  it- 
was  based  on  a  constitutional  concept  then  vig 
orously  denied  by  many  lawyers.  This  meas 
ure  sought  to  prevent  the  use  of  the  labour  of 
children  in  manufacturing  processes  by  impos 
ing  prohibitions  and  penalties  on  railroad  com 
panies,  who  employed  no  children  and  engaged 
in  no  manufacture.  The  carriers  were  to  be 
punished  if  they  carried  the  products  of  child 
labour,  and  the  employers  of  little  children  were 
to  be  punished  only  if  they  made  false  state 
ments  as  to  such  employment.  Such  a  measure 


NATIONAL  POWER  71 

seemed  necessarily  based  on  the  proposition 
that  Congress  had  an  unlimited  power — arbi 
trary,  in  its  discretion — over  the  instrumental 
ities  of  interstate  commerce.  Otherwise,  Con 
gress  could  not  attach  the  penalties  to  acts  of 
carriers  themselves  doing  no  wrong.  Senator 
Carmack  is  said  to  have  wrung  from  Senatoj" 
Beveridge  even  an  admission  that  the  latter 's 
bill  was  based  on  a  theory  which  carried  the 
extreme  implication  that  Congress  had  such 
power  over  interstate  railroads  that  it  could 
prohibit  them  from  carrying  the  milk  of  such 
cows  as  were  milked  by  red-headed  girls ! 

Justice  Hughes  and  his  colleagues  have,  how 
ever,  pointed  and  cleared  the  way  construc 
tively  for  a  National  regulation  of  child  labour 
on  a  less  debatable  basis.  The  Keating-Owen 
bill,  in  the  form  in  which  it  was  pending  before 
the  Senate  at  the  time  of  the  writing  of  this 
volume,  follows  more  closely  the  doctrine  of  the 
vdecisions  above  quoted.  It  denies  to  a  factory 
or  mine  employing  children  below  specified 
standards  of  child  protection  in  the  public  in 
terest,  the  right  to  use  the  instrumentalities 
and  channels  of  interstate  commerce.  The  em 
ployment  of  children  in  manufacture  or  mining 
is  looked  upon  as  evincing  an  intent,  and  as 
disclosing  acts,  inimical  to  public  health,  mor 
als,  safety  and  welfare;  and  the  employers  of 
children  under  such  circumstances  are  to  be 
barred  from  use  of  the  facilities  of  interstate 
transportation.  A  child-employing  establish- 


72  CHAELES  E.  HUGHES 

ment  is  thus  placed  in  the  same  category  with 
a  lottery  or  with  an  area  in  which  cattle  or  per 
sons  are  generally  diseased,  and  the  goods  pro 
duced  in  the  child-employing  establishment  are 
placed  in  the  category  of  lottery  tickets,  dis 
eased  cattle,  obscene  printed  matter,  adulter- 
^ted  drags,  and  the  like.  Therefore,  while 
there  may  be  no  inherent  differences  between 
the  goods  manufactured  in  a  place  where  chil 
dren  work  and  those  made  in  a  place  where  only 
adults  work — and  so  no  basis,  short  of  arbi 
trary  power,  for  the  imposing  of  penalties  on 
carriers  transporting  the  former — there  is 
much  difference  between  the  two  establishments 
— one  conserving,  and  the  other  impinging  upon 
and  tearing  down,  the  vigour,  health,  morality 
and  welfare  of  the  boys  and  girls  who  soon  will 
be  the  men  and  women  of  the  Nation.  The  es 
tablishment  at  war  with  public  welfare  cannot 
carry  on  that  war  over  State  boundaries.  The 
Nation  localizes,  confines  to  a  single  State,  the 
power  of  such  an  establishment  to  do  more  gen 
eral  injury,  by  denying  it  the  right  to  move  its 
products  into  other  States,  until  it  eliminates 
from  its  mode  of  doing  business  the  crime 
against  the  robustness,  morality,  education,  and 
joyous  childhood  of  American  boys  and  girls. 

Justice  Hughes  prepared  the  opinions  of  the 
Court  upon  other  and  diversified  aspects  of  the 
necessary  adjustments  between  National  and 
State  sovereignty,  but  it  is  impracticable  in  this 


NATIONAL  POWER  73 

volume  to  do  more  than  refer  by  footnote  to  the 
cases  *  in  which  were  expressed  his  amplified 
views  of  an  adequate  Nationalism.  In  subse 
quent  chapters,  notably  those  dealing  with  pure 
food  laws  and  the  regulation  of  labour  condi 
tions,  will  be  found  excerpts  from  his  opinions 
as  to  the  scope  of  State  and  National  power  in 
relation  to  those  topics. 

1Port  Richmond  Ferry  vs.  Hudson  County  (234  U.  S.  Re 
ports,  page  317)  ;  Sault  Ste.  Marie  vs.  International  Transit 
Co.  (234  U.  S.  Eeports,  page  333) ;  Anderson  vs.  Pacific  Coast 
Ss.  Co.  (225  U.  S.  Eeports,  page  187) ;  Wilmington  Transp. 
Co.  vs.  California  E.  E.  Commission  (236  U.  S.  Eeports,  page 
151) ;  Adams  Express  Co.  vs.  New  York  (232  U.  S.  Eeports, 
page  14) ;  Philadelphia  Co.  vs.  Stimson  (223  U.  S.  Eeports, 
page  605) ;  Chicago,  etc.,  Ey.  Co.  vs.  Iowa  (233  U.  S.  Eeports, 
page  334). 


CHAPTEE   HI 

THE  DOCTRINE  OF  REASONABLE  RELATIONSHIP  TO  A 
PERMISSIBLE  PURPOSE 

IP  a  student  of  modern  legislation  were  to 
make  inquiry  for  the  purpose  of  forming  an 
estimate  as  to  the  social  outlook  and  social 
statesmanship  of  a  member  of  an  appellate 
court,  his  inquiry  would  probably  be  along  four 
or  five  notable  lines.  He  would  inquire  as  to 
his  acceptance  and  application  of  the  doctrine 
of  reasonable  relationship  to  a  permissible  pub 
lic  purpose ;  he  would  inquire  as  to  his  rejection 
of  the  doctrine  of  "freedom  of  contract "  and 
his  willingness  to  follow  through  the  full  conse 
quences  of  that  rejection;  he  would  ask  as  to 
his  standards  of  determining  what  "process" 
and  procedure  is  "due"  and  what  is  arbitrary; 
he  would  ask  as  to  his  criteria  of  reviewing 
questions  of  the  remunerativeness  or  confisca- 
tory  consequences  of  rate  and  service  orders 
of  governmental  authorities;  and  he  would 
search  as  to  his  acceptance  or  rejection  of  the 
modern  concept  of  legal  and  social  science  in 
the  regulative  field,  which  calls  for  ascertain 
ment  of  facts,  action  in  the  light  of  disclosed 
conditions,  and  emancipation  alike  from  a  mere 

74 


EXTENSION  OF  "POLICE  POWER"    75 

traditionalism  of  form  and  an  unquestioned 
adherence  to  predetermined  conceptions  of  law 
and  policy. 

A  brief  commentary  upon  the  judicial  course 
and  utterances  of  Justice  Hughes  and  his  col 
leagues  in  the  Supreme  Court  may  be  of  value 
at  this  juncture: 

As  to  the  doctrine  of  reasonable  relationship 
to  the  accomplishment  of  a  permissible  public 
purpose:  From  a  social  viewpoint,  perhaps  the 
most  forward-looking  event  in  the  legal  his 
tory  of  the  past  decade  or  so  has  been  the  de 
velopment  and  extending  application  of  this 
concept  as  to  the  metes  and  bounds  of  regula 
tive  action  for  social  betterment.  From  this 
viewpoint,  two  questions  are  presented  as  to 
the  validity  of  a  regulative  measure : 

Is  there  an  evil — conditions  with  which  gov 
ernment  is  called  upon  or  entitled  to  deal — 
and  does  the  measure  deal  with  a  purpose  which 
government  is  entitled  to  effect? 

If  so,  does  the  legislation  in  question  bear  a 
reasonable  relation  to  that  purpose? 

For  many  years,  the  question  of  the  per 
missible  scope  of  the  exercise  of  governmental 
power  in  behalf  of  social  welfare  had  caused 
a  great  deal  of  disagreement  between  the  Courts 
of  different  jurisdictions,  between  students  of 


76  CHAELES  E.  HUGHES 

the  history  and  philosophy  of  the  law,  and  be 
tween  champions  of  opposing  schools  of  thought 
and  action  in  the  realm  of  public  affairs.  There 
was,  for  example,  sharp  divergence  of  standards 
between  the  Federal  and  many  State  courts,  as 
to  the  limits  of  governmental  discretion  under 
the  concept  of  "due  process "  which  the  Four 
teenth  Amendment  requires  the  National  judi 
cial  power  to  apply  and  enforce,  even  as  against 
the  action  of  a  sovereign  State.  One  of  the 
difficulties,  it  is  true,  was  that  the  National 
view  was  perhaps  naturally  more  broad  and 
progressive  than  the  view  of  many  of  the  older 
States,  but  another  difficulty  was  that  there 
was  no  very  definite  or  understandable  formula 
for  determining  the  boundaries  of  the  regula 
tive  power,  commonly  referred  to  as  the  "po 
lice  power "  of  government. 

Some  of  the  State  courts  ruled  that  the  "due 
process"  clause  permitted  legislation  to  protect 
the  lives,  health,  morals,  and  physical  safety  of 
the  general  public  or  of  employes,  for  example, 
but  little,  if  anything,  beyond  that.  The  New 
York  Court  of  Appeals  said  that1 

Every  man's  right  to  life,  liberty  and  prop 
erty  is  to  be  disposed  of  in  accordance  with 
those  ancient  and  fundamental  principles  which 
were  in  existence  when  our  Constitutions  were 
adopted. 

1Ives  vs.  South  Buffalo  By.  Co.   (201  N.  Y.  Keports,  page 
271). 


EXTENSION  OF   "POLICE  POWER"    77 

On  the  other  hand,  the  Supreme  Court  of  the 
United  States  was  giving  to  the  "  police  power " 
a  very  broad  and  wholesome  application,  with 
out  laying  down  any  very  comprehensible  stand 
ard  for  determining  what  was  and  was  not 
within  its  limitations.  ' '  The  power  is,  and  must 
be  from  its  very  nature,  incapable  of  any  very 
exact  definition  or  limitation,"  said  the  Court.1 
"Upon  it  depends  the  security  of  the  social  or 
der,  the  life  and  health  of  the  citizen,  the  com 
fort  of  existence  in  a  thickly  populated  com 
munity,  the  enjoyment  of  private  and  social 
life,  and  the  beneficial  use  of  property."  A 
little  later  it  was  observed  that  the  power  might 
be  said  to  "extend  to  all  the  great  public 
needs, ' ' 2  and  still  later  it  was  said,3  Justice 
Hughes  concurring,  that  the  "police  power" 

.  .  .  may  be  put  forth  in  aid  of  what  is  sanc 
tioned  by  usage,  or  held  by  the  prevailing 
morality  or  strong  and  preponderant  opinion 
to  be  greatly  and  immediately  necessary  to  the 
public  welfare. 

The  inclusion  of  "public  welfare"  as  one  of 
the  permissible  objects  of  the  "police  power" 
— as  distinguished  from  merely  "life,  safety, 
health  and  morals" — has  had  a  most  salutary 
effect.  "Social  purpose"  has  come  within  the 

1  Slaughter  House  Cases  (16  Wallace's  [U.  S.]  Eeports, 
page  36). 

*Camfield  vs.  U.  S.   (167  U.  S.  Eeports,  page  518). 

3  Noble  State  Bank  vs.  Haskell  (219  U.  S.  Eeports,  page 
104). 


78  CHAELES  E.  HUGHES 

purview  of  "public  purpose,"  and  there  has 
been  a  continued  and  broadening  judicial  ap 
preciation  of  the  quickened  regulative  activities 
of  the  State. 

The  development  of  the  doctrine  of  "  reason 
able  relationship  to  a  public  purpose  "  has  given 
perhaps  a  new  definiteness  and  stability  to  the 
concept  of  "due  process"  and  the  "police 
power."  It  has  afforded  a  sound  and  more 
workable  standard  and  test.  Is  there  an  evil? 
Are  there  conditions  affected  with  a  public  in 
terest  or  giving  rise  to  a  public  concern?  Is 
there  an  aspect  of  public  welfare  presented  by 
social  phenomena  to  which  attention  has  been 
directed  by  fair  inquiry?  If  so,  does  the  rem 
edy,  the  particular  proposal  which  the  legisla 
ture  has  adopted,  the  legislation  which  it  has 
fashioned,  seem  designed  to  deal  with  the  evil, 
the  conditions?  The  Court  is  of  course  not 
called  upon  to  answer  this  question  with  guar 
anty  of  the  suitableness  and  effectiveness  of 
the  expedient ;  the  question  is  not  whether  the 
legislature  has  chosen  the  best  possible  method 
or  put  its  enactment  in  the  best  possible  form ; 
the  question  is  whether  the  measure  is  reason 
ably  calculated  to  deal  with  the  conditions  and 
bears  a  reasonable  relation  to  the  accomplish 
ment  of  the  public  purpose.  If  there  is  room 
for  a  difference  of  honest  opinion,  the  legisla 
ture  is  entitled  to  decide.  In  other  words,  in  all 
fairness,  can  the  Court  see  that  the  legisla 
ture's  proposal  bears  an  actual  and  reasonable 


EXTENSION  OF  "POLICE  POWER »    79 

relation  to  accomplishing  the  result?  Of  course, 
if  it  does  not,  and  seems  to  be  only  a  subter 
fuge  and  the  public  purpose  only  a  pretext,  then 
the  measure  falls  under  the  Constitutional  pro 
hibition.  If  the  measure  discloses  aught  dis 
criminatory  and  essentially  unfair  to  classes  of 
the  community,  manifesting  a  disposition  to  in 
jure  and  penalize  rather  than  aid  and  upbuild, 
then  the  measure  falls.  If  the  measure  is  arbi 
trary  in  its  operation,  it  likewise  falls,  for  rea 
sons  which  will  be  commented  on  later  in  this 
chapter;  but  the  fundamental  challenge  of  the 
Constitution  to  the  legislature  is:  Does  and 
can  the  Court,  in  all  fairness,  see  that  your  new 
law  bears  a  reasonable  relation  to,  and  is  fairly 
calculated  to  be  a  step  forward  in  bringing 
about,  a  result  which  the  legislature  is  entitled 
to  try  to  accomplish?  If  so,  the  requirements 
of  "due  process "  have  been  met,  and  the  meas 
ure  is  within  the  "police  power." 

To  this  doctrine,  which  has  lately  been  the 
rallying-point  of  the  champions  of  economic 
and  industrial  legislation  before  judicial  tri 
bunals,  Justice  Hughes  early  gave  definite  and 
apparently  cordial  acceptance.  It  may  fairly 
be  said  that  he  has  'taken  a  discernible  and  im 
portant  part  in  its  wholesome  development  and 
fair  application.  In  the  first  opinion  which  he 
wrote  on  a  "social  welfare"  question,  he  said:1 

1  Chicago,  B.  &  Q.  By.  Co.  vs.  McGuire  (219  U.  S.  Beports, 
page  549). 


80  CHARLES  E.  HUGHES 

We  pass  without  comment  the  criticisms 
which  are  made  of  certain  details  of  the  relief 
plan,  for  neither  the  suggested  excellence  nor 
the  alleged  defects  of  a  particular  scheme  may 
be  permitted  to  determine  the  validity  of  the 
statute,  which  is  general  in  its  application.  The 
question  with  which  we  are  concerned  is  not 
whether  the  regulations  set  forth  in  the  answer 
are  just  or  unjust,  but  whether  the  amended 
statute  transcends  the  limits  of  power  as  de 
fined  by  the  Federal  Constitution.  .  .  .  The 
legislature,  provided  it  acts  within  its  consti 
tutional  authority,  is  the  arbiter  of  the  public 
policy  of  the  State.  While  the  Court,  unaided 
by  legislative  declaration  and  applying  the 
principles  of  the  common  law,  may  uphold  or 
condemn  contracts  in  the  light  of  what  is  con 
ceived  to  be  public  policy,  its  determination  as 
a  rule  for  future  action  must  yield  to  the  legis 
lative  will  when  expressed  in  accordance  with 
the  organic  law.  .  .  .  Freedom  of  contract  is 
a  qualified  and  not  an  absolute  right.  There 
is  no  absolute  freedom  to  do  as  one  wills  or  to 
contract  as  one  chooses.  The  guaranty  of  lib 
erty  does  not  withdraw  from  legislative  super 
vision  that  wide  department  of  activity  which 
consists  of  the  making  of  contracts,  or  deny  to 
government  the  power  to  provide  restrictive 
safeguards.  Liberty  implies  the  absence  of  ar 
bitrary  restraint,  not  immunity  from  reason 
able  regulations  and  prohibitions  imposed  in 
the  interests  of  the  community.  .  .  . 

The  right  to  make  contracts  is  subject  to 
the  exercise  of  the  powers  granted  to  Congress 
for  the  suitable  conduct  of  matters  of  national 


EXTENSION  OF   "POLICE   POWER"    81 

concern,  as  for  example  the  regulation  of 
commerce  with  foreign  nations  and  among  the 
several  States.  .  .  . 

It  is  subject  also,  in  the  field  of  State  action, 
to  the  essential  authority  of  government  to 
maintain  peace  and  security  and  to  enact  laws 
for  the  promotion  of  the  health,  safety,  morals 
and  welfare  of  those  subject  to  its  jurisdiction. 
This  limitation  has  had  abundant  illustration  in 
a  variety  of  circumstances.  Thus,  in  addition  to 
upholding  the  power  of  the  State  to  require 
reasonable  maximum  charges  for  public  serv 
ice  (Munn  v.  Illinois,  94  U.  S.  113;  C.,  B.  & 
Q.  E.  R.  Co.  v.  Iowa,  94  U.  S.  155;  Railroad 
Commission  Cases,  116  U.  S.  307;  Willcox  v. 
Consolidated  Gas  Co.,  212  U.  S.  19),  and  to 
prescribe  the  hours  of  labour  for  those  employed 
by  the  State  or  its  municipalities  (Aikin  v.  Kan 
sas,  191  U.  S.  207),  this  court  has  sustained  the 
validity  of  State  legislation  in  prohibiting  the 
manufacture  and  sale  of  intoxicating  liquors 
within  the  State  (Mugler  v.  Kansas,  123  U.  S. 
623;  Crowley  v.  Christ ensen,  supra) ;  in  limit 
ing  employment  in  underground  mines  or  work 
ings,  and  in  smelters  and  other  institutions  for 
the  reduction  or  refining  of  ores  or  metals,  to 
eight  hours  a  day  except  in  cases  of  emergency 
(Holden  v.  Hardy,  169  U.  S.  366) ;  in  prohibit 
ing  the  sale  of  cigarettes  without  license  (Gund- 
ling  v.  Chicago,  177  U.  S.  183) ;  in  requiring  the 
redemption  in  cash  of  store  orders  or  other 
evidences  of  indebtedness  issued  in  payment  of 
wages  (Knoxville  Iron  Co.  v.  Harbison,  183  U. 
S.  13) ;  in  prohibiting  contracts  for  options  to 
sell  or  buy  grain  or  other  commodity  at  a  future 


82  CHARLES  E.  HUGHES 

time  (Booth  v.  Illinois,  184  IT.  S.  425) ;  in  pro 
hibiting  the  employment  of  women  in  laundries 
more  than  ten  hours  a  day  (Muller  v.  Oregon, 
208  U.  S.  412) ;  and  in  making  it  unlawful  to 
contract  to  pay  miners  employed  at  quantity 
rates  upon  the  basis  of  screened  coal,  instead  of 
the  weight  of  the  coal  as  originally  produced 
in  the  mine  (McLean  v.  Arkansas,  211  U.  S. 
539). 

The  principle  involved  in  these  decisions  is 
that  where  the  legislative  action  is  arbitrary 
and  has  no  reasonable  relation  to  a  purpose 
which  it  is  competent  for  government  to  effect, 
the  legislature  transcends  the  limits  of  its 
power  in  interfering  with  liberty  of  contract; 
but  where  there  is  reasonable  relation  to  an 
object  within  the  governmental  authority,  the 
exercise  of  the  legislative  discretion  is  not  sub 
ject  to  judicial  review.  The  scope  of  judicial 
inquiry  in  deciding  the  question  of  power  is  not 
to  be  confused  with  the  scope  of  legislative  con 
siderations  in  dealing  with  the  matter  of  policy. 
Whether  the  enactment  is  wise  or  unwise, 
whether  it  is  based  on  sound  economic  theory, 
whether  it  is  the  best  means  to  achieve  the  de 
sired  result,  whether,  in  short,  the  legislative 
discretion  within  its  prescribed  limits  should  be 
exercised  in  a  particular  manner,  are  matters 
for  the  judgment  of  the  legislature,  and  the 
earnest  conflict  of  serious  opinion  does  not  suf 
fice  to  bring  them  within  the  range  of  judicial 
cognizance.  .  .  . 

In  dealing  with  the  relation  of  employer  and 
employed,  the  legislature  has  necessarily  a  wide 
field  of  discretion  in  order  that  there  may  be 


EXTENSION  OF  "  POLICE  POWEB"    83 

suitable  protection  of  health  and  safety,  and 
that  peace  and  good  order  may  be  promoted 
through  regulations  designed  to  insure  whole 
some  conditions  of  work  and  freedom  from  op 
pression.  What  difference,  as  to  the  extent  of 
this  power,  may  exist  with  respect  to  particular 
employments,  and  how  far  that  which  may  be 
authorised  as  to  one  department  of  activity 
may  appear  to  be  arbitrary  in  another,  must  be 
determined  as  cases  are  presented  for  decision. 
But  it  is  well  established  that,  so  far  as  its  regu 
lations  are  valid,  not  being  arbitrary  or  unre 
lated  to  a  proper  purpose,  the  legislature  un 
doubtedly  may  prevent  them  from  being  nulli 
fied  by  prohibiting  contracts  which  by  modifica 
tion  or  waiver  would  alter  or  impair  the  ob 
ligation  imposed.  If  the  legislature  may  re 
quire  the  use  of  safety  devices,  it  may  prohibit 
agreements  to  dispense  with  them.  If  it  may 
restrict  employment  in  mines  and  smelters  to 
eight  hours  a  day,  it  may  make  contracts  for 
longer  service  unlawful.  In  such  case  the  inter 
ference  with  the  right  to  contract  is  incidental 
to  the  main  object  of  the  regulation,  and  if  the 
power  exists  to  accomplish  the  latter,  the  inter 
ference  is  justified  as  an  aid  to  its  exercise. 

In  the  " Illinois  child-labour  law"  case1  he 
made  and  applied  this  admirable  statement  of 
the  rule: 

Where,  as  here,  such  legislation  has  a  reason 
able  relation  to  a  purpose  which  the  State  was 

1Sturges  vs.  Beauchamp  (231  U.  S.  Eeports,  page  320,  at 
page  326). 


84  CHAELES  E.  HUGHES 

entitled  to  effect,  it  is  not  open  to  constitutional 
objection  as  a  deprivation  of  liberty  or  property 
without  due  process  of  law. 

As  to  the  requirement  of  "due  process9'  that 
no  department  of  government  shall  inflict  upon 
individual  activities  and  opportunities  an  exer 
cise  of  purely  arbitrary  power:  The  indefinite- 
ness  of  the  phrase  "due  process"  has  hid  from 
at  least  lay  understanding  a  multitude  of  early 
judicial  errors,  and  has  led  not  a  few  people 
to  think  there  was  something  radically  wrong 
with  our  Constitutional  and  judicial  system. 
The  trouble  was  that  economic,  social,  political 
and  industrial  conditions  changed  so  fast,  fol 
lowing  the  Civil  War,  that  it  took  the  law — 
which  is  always  last,  and  should  be,  in  any  social 
change,  although  not  so  hopelessly  in  arrears 
— a  little  time  to  catch  up  and  readjust  its  defini 
tions  to  the  new  aspect  of  things.  When  is  the 
process  of  taking  a  person's  life,  liberty,  and  es 
pecially  his  property,  "due  process' '?  "Due 
process"  is  of  course  a  matter  of  both  substance 
and  of  procedural  form,  and  it  has  taken  some 
time  to  readjust  our  legal  definitions  of  "due 
process"  to  the  new  administrative  agencies, 
legislative  forms,  and  procedural  improvements 
which  have  come  with  progress  in  the  law  and 
social  outlook. 

On  the  procedural  side — the  side  of  form, 
method  and  "process" — Justice  Hughes  has 
also  had  an  influence  and  performed  a  part, 


WHAT  IS  "DUE  PBOCESS"  85 

in  giving  to  "due  process"  at  once  a  rugged, 
imperishable  vitality,  a  real  power  to  safeguard 
things  which  must  never  be  withheld  or  aban 
doned,  yet  at  the  same  time  a  practicable  con- 
f ormance  to  improvements  of  mechanism  which 
involve  no  withdrawal  of  fundamentals.  To 
him,  as  gleaned  from  many  decisions,  "due 
process"  commits  to  no  particular  form  or 
mechanism,  fetters  the  present  to  no  particular 
device  or  expedient  of  the  past,  interposes  no 
barrier  to  the  betterment  in  methods  of  deter 
mination  which  the  future  may  devise ;  yet  back 
of  all  this  flexibility  remains  a  stalwart  ad 
herence  to  essentials  that  cannot  be  denied 
without  calling  into  action  the  National  judicial 
power. 

The  essentials  of  "due  process,"  as  he  saw 
them,  were  those  of  proper  notice  and  fair  op 
portunity  to  be  heard  in  advance  of  determina 
tion,  a  freedom  from  unfair  influence  inside  or 
outside  the  determining  tribunal,  and  action 
that  shows  no  trace  of  purely  arbitrary  charac 
ter.  An  open-minded  willingness  to  hear,  find, 
weigh,  and  fairly  act  upon,  the  facts  makes  any 
process  "due."  Some  details  of  the  views  of 
Justice  Hughes  as  to  what  procedural  reforms 
are  permissible  and  what  elements  are  essen 
tial,  will  be  found  in  Chapter  XVII,  post. 

As  to  abridgement  of  so-called  "freedom  of 
contract"  in  industrial  relationship :  For  many 
years  the  shibboleth  of  judicial  obstruction  of 


86  CHAELES  E.  HUGHES 

so-called  "social  welfare"  legislation,  notably 
in  State  courts,  was  the  historic  doctrine  of 
"freedom  of  contract, "  which  of  course  came 
down  from  the  time  when  such  a  thing  existed. 
When  there  was  an  industrial  situation  in  which 
employer  and  employe  stood  on  some  sort  of 
an  equal  footing,  and  the  man  or  woman  did  not 
have  to  go  to  work  in  the  little  shop  unless  he 
or  she  wanted  to,  because  there  were  plenty  of 
other  little  shops  where  they  might  work,  and 
plenty  of  ways  for  them  to  get  a  living  without 
working  in  any  industrial  establishment  at  all, 
the  law  recognised  a  kind  of  mutual  freedom  of 
contract,  and  said  that  the  employer  and  em 
ploye  might  talk  «it  over  and  make  the  kind  of  a 
contract  they  wanted  to,  each  driving  the  best 
bargain  he  could.  That  kind  of  a  legal  doctrine 
was  all  right  as  long  as  the  conditions  remained 
anything  like  what  they  were,  and  as  long  as  the 
contracting  parties  stood  on  some  kind  of  an 
equality  and  there  was  anything  approaching 
freedom  of  contract. 

The  difficulty  arose  when  conditions  changed, 
and  many  employers  and  their  lawyers,  and  a 
few  judges  who  mostly  had  been  lawyers  for 
employers,  wanted  to  keep  the  old  law  "like  a 
strait- jacket,"  as  Justice  Hughes  said,  quoting 
from  Justice  Moody,  and  kept  trying  to  enforce 
application  of  the  old  law  to  new  conditions. 
When  the  farm-hand  wanted  to  turn  switchman, 
and  found  himself  confronted  with  a  railroad 
corporation  which  operated  all  the  railroads  in 


"FEEEDOM  OF  CONTBACT"          87 

his  part  of  the  country;  when  the  widow,  sud 
denly  thrown  on  her  resources  in  the  little  vil 
lage,  came  to  the  mill  town,  and  stood  amid 
whirring  fly-wheels  and  the  noise  of  strange  ma 
chines  and  tried  to  dicker  with  the  indifferent 
sub-foreman  of  the  only  factory  in  town  for  a 
chance  to  earn  enough  money  for  the  support 
and  schooling  of  her  dependent  children ;  when 
the  cost  of  living  forced  the  schoolboy  into  the 
shops  and  the  daughter  of  the  family  down  to 
the  employes'  entrance  of  the  jute  mill  or  the 
box  factory,  to  try  to  supplement  the  meagre 
family  earnings,  there  was  not  much  "freedom 
of  contract"  left  to  be  conserved  or  considered 
in  a  community  which  cared  about  its  own 
standards  of  humanity  or  the  physical  robust 
ness  of  its  next  generation. 

Justice  Hughes  quickly  made  known  his  con 
currence  in  the  view  many  times  expressed  by 
the  Supreme  Court  that 

There  is  no  such  thing  as  absolute  freedom  of 
contract.  Contracts  which  contravene  public 
policy  cannot  be  made  at  all  .  .  .  and  the  power 
of  government  extends  to  the  denial  of  the  lib 
erty  of  contract  to  the  extent  of  forbidding  or 
regulating  every  contract  which  is  reasonably 
calculated  to  injuriously  affect  the  public  in 
terests.1 

In  the  first  opinion  which  he  wrote  for  the 
Court  in  relation  to  a  regulative  topic  he  quoted 

1  Atlantic  Coast  Line  E.  E.  Co.  vs.  Riverside  Mills  (219 
U.  S.  Eeports,  page  186). 


88  CHAELES  E.  HUGHES 

at  length  *  from  the  classic  repudiation  of  the 
"freedom  of  contract "  theory  in  E olden 
against  Hardy?  to  the  effect  that 

The  fact  that  both  parties  are  of  full  age  and 
competent  to  contract  does  not  necessarily  de 
prive  the  State  of  power  to  interfere  where  the 
parties  do  not  stand  upon  an  equality,  or  where 
the  public  health  demands  that  one  party  to  the 
contract  shall  be  protected  against  himself. 
' i  The  State  still  retains  an  interest  in  his  wel 
fare,  however  reckless  he  may  be.  The  whole 
is  no  greater  than  the  sum  of  all  the  parts,  and 
when  the  individual  health,  safety  and  welfare 
are  sacrificed  or  neglected,  the  State  must  suf 
fer." 

Throughout  his  Supreme  Court  service  he 
rigorously  applied  this  doctrine,  and,  as  in  the 
McGuire  case,1  he  declared  many  amplifications 
of  it  by  holding  that  the  parties  to  an  industrial 
contract  had  no  right  to  make  agreements  al 
tering  or  evading,  as  to  themselves,  the  public 
policy  declared  in  behalf  of  the  paramount  pub 
lic  interest. 

As  to  the  requirement  that  regulatory  action 
shall  not  amount  to  a  "confiscation"  of  the 
property  of  those  entitled  to  earn  a  fair  return: 

1  Chicago,  B.  $  Q.  Ey.  Co.  vs.  McGuire  (219  U.  S.  Reports, 
page  549). 
a!69  U.  S.  Eeports,  page  397. 


STANDARDS    OF    " CONFISCATION"    89 

Within  the  necessary  limits  of  this  volume,  it  is 
not  practicable  to  discuss  the  principles  which 
Justice  Hughes  laid  down,  notably  in  the  Min 
nesota  Rate  Cases  *  and  those  which  followed 
it,  as  to  the  ascertainment  of  the  property  val 
ues  on  which  the  returns  from  the  business  of  a 
public  service  corporation  are  to  be  figured, 
and  the  basis  on  which  determination  must  be 
made  whether  the  rates  under  attack  are  or  are 
not  ' '  confi  scatory. ' '  It  may  be  sufficient  to  in 
dicate,  at  this  point,  the  fundamentals  of  legal 
and  economic  standards-  which  he  felt  should 
govern  the  action  of  the  Commissions  and  Leg 
islatures  in  determining,  and  of  the  Courts  in 
reviewing,  rates  prescribed  by  regulative 
authority. 

In  Northern  Pacific  Railway  Company 
against  North  Dakota,2  he  said : 

The  general  principles  to  be  applied  are  not 
open  to  controversy.  The  railroad  property  is 
private  property  devoted  to  a  public  use.  As  a 
corporation,  the  owner  is  subject  to  the  obliga 
tions  of  its  charter.  As  the  holder  of  special 
franchises,  it  is  subject  to  the  conditions  upon 
which  they  are  granted.  Aside  from  specific 
requirements  of  this  sort,  the  common  carrier 
must  discharge  the  obligations  which  inhere  in 
the  nature  of  its  business.  It  must  supply 
facilities  that  are  reasonably  adequate ;  it  must 
carry  upon  reasonable  terms ;  and  it  must  serve 

'230  U.  S.  Eeports,  page  352. 
a23(>  U.  S.  Reports,  page  595, 


90  CHARLES  E.  HUGHES 

without  unjust  discrimination.  These  duties 
are  properly  called  public  duties,  and  the  State 
within  the  limits  of  its  jurisdiction  may  enforce 
them.  The  State  may  prescribe  rules  to  insure 
fair  remuneration  and  to  prevent  extortion,  to 
secure  substantial  equality  of  treatment  in  like 
cases,  and  to  promote  safety,  good  order  and 
convenience. 

But,  broad  as  is  the  power  of  the  regulation, 
the  State  does  not  enjoy  the  freedom  of  an 
owner.  The  fact  that  the  property  is  devoted 
to  a  public  use  on  certain  terms  does  not  jus 
tify  the  requirement  that  it  shall  be  devoted  to 
other  public  purposes,  or  to  the  same  use  on 
other  terms,  or  the  imposition  of  restrictions 
that  are  not  reasonably  concerned  with  the 
proper  conduct  of  the  business  according  to 
the  undertaking  which  the  carrier  has  expressly 
or  impliedly  assumed.  If  it  has  held  itself  out 
as  a  carrier  of  passengers  only,  it  cannot  be 
compelled  to  carry  freight.  As  a  carrier  for 
hire,  it  cannot  be  required  to  carry  persons  or 
goods  gratuitously.  The  case  would  not  be 
altered  by  the  assertion  that  the  public  interest 
demanded  such  carriage.  The  public  interest 
cannot  be  invoked  as  a  justification  for  demands 
which  pass  the  limits  of  reasonable  protection 
and  seek  to  impose  upon  the  carrier  and  its 
property  burdens  that  are  not  incident  to  its 
engagement.  In  such  a  case,  it  would  be  no 
answer  to  say  that  the  carrier  obtains  from 
its  entire  intrastate  business  a  return  as  to  the 
sufficiency  of  which  in  the  aggregate  it  is  not 
entitled  to  complain.  .  .  . 

We  have,  then,  to  apply  these  familiar  prin- 


STAND AEDS    OF    "CONFISCATION" 

ciples  to  a  case  where  the  State  has  attempted 
to  fix  a  rate  for  the  transportation  of  a  com 
modity  under  which,  taking  the  results  of  the 
business  to  which  the  rate  is  applied,  the  car 
rier  is  compelled  to  transport  the  commodity 
for  less  than  cost  or  without  substantial  com 
pensation  in  addition  to  cost.  We  say  this,  for 
we  entertain  no  doubt  that,  in  determining  the 
cost  of  the  transportation  of  a  particular  com 
modity,  all  the  outlays  which  pertain  to  it  must 
be  considered.  We  find  no  basis  for  distin 
guishing  in  this  respect  between  so-called  '  '  out- 
of-pocket  costs,"  or  "actual"  expenses,  and 
other  outlays  which  are  none  the  less  actually 
made  because  they  are  applicable  to  all  traffic, 
instead  of  being  exclusively  incurred  in  the 
traffic  in  question.  Illustrations  are  found  in 
outlays  for  maintenance  of  way  and  structures, 
general  expenses  and  taxes.  It  is  not  a  suffi 
cient  reason  for  excluding  such,  or  other,  ex 
penses  to  say  that  they  would  still  have  been 
incurred  had  the  particular  commodity  not 
been  transported.  That  commodity  has  been 
transported;  the  common  carrier  is  tinder  a 
duty  to  carry,  and  the  expenses  of  its  business 
at  a  particular  time  are  attributable  to  what  it 
does  carry.  The  State  cannot  estimate  the  cost 
of  carrying  coal  by  throwing  the  expense  inci 
dent  to  the  maintenance  of  the  roadbed,  and  the 
general  expenses,  upon  the  carriage  of  wheat; 
or  the  cost  of  carrying  wheat  by  throwing  the 
burden  of  the  upkeep  of  the  property  upon 
coal  and  other  commodities. 


^92  CHARLES  E.  HUGHES 

In  Louisville  and  Nashville  R.  R.  Co.  against 
Garrett,1  he  said: 

.  .  .  prescribing  rates  for  the  future  is  an 
act  legislative,  and  not  judicial,  in  kind.  .  .  . 
It  pertains,  broadly  speaking,  to  the  legislative 
power.  The  legislature  may  act  directly,  or,  in 
the  absence  of  constitutional  restriction,  it  may 
commit  the  authority  to  fix  rates  to  a  subordi 
nate  body.  .  .  . 

The  contention  is  that,  before  the  Com  mi  a- 
sion  makes  such  an  order,  it  is  required  to  exer 
cise  judicial  functions.  It  is  first  to  deter 
mine  whether  the  carrier  has  been  exacting 
more  than  is  just  and  reasonable;  it  is  to  give 
notice  and  a  hearing;  it  is  to  "hear  such  state 
ments,  arguments  or  evidence  offered  by  the 
parties "  as  it  may  deem  relevant,  and  it  is  in 
case  it  determines  that  the  carrier  is  "guilty  of 
extortion "  that  it  is  to  prescribe  the  just  and 
reasonable  rate.  Still,  the  hearing  and  deter 
mination,  viewed  as  prerequisite  to  the  fixing 
of  rates,  are  merely  preliminary  to  the  legis 
lative  act.  To  this  act,  the  entire  proceeding 
led ;  and  it  was  this  consequence  which  gave  to 
the  proceeding  its  distinctive  character.  Very 
properly,  and,  it  might  be  said,  necessarily — 
even  without  the  express  command  of  the  stat 
ute — would  the  Commission  ascertain  whether 
the  former,  or  existing,  rate,  was  unreasonable 
before  it  fixed  a  different  rate.  And  in  such  an 
inquiry,  for  the  purpose  of  prescribing  a  rule 
for  the  future,  there  would  be  no  invasion  of 
the  province  of  the  judicial  department.  Even 

»231  U.  S.  Keports,  page  298. 


STANDARDS    OF    "  CONFISCATION "    93 

where  it  is  essential  to  maintain  strictly  the 
distinction  between  the  judicial  and  other 
branches  of  the  government,  it  must  still  be 
recognised  that  the  ascertainment  of  facts,  or 
the  reaching  of  conclusions  upon  evidence  taken 
in  the  course  of  a  hearing  of  parties  interested, 
may  be  entirely  proper  in  the  exercise  of  execu 
tive  or  legislative,  as  distinguished  from  judi 
cial,  powers.  The  legislature,  had  it  seen  fit, 
might  have  conducted  similar  inquiries  through 
committees  of  its  members,  or  specially  con 
stituted  bodies,  upon  whose  report  as  to  the 
reasonableness  of  existing  rates  it  would  de 
cide  whether  or  not  they  were  extortionate  and 
whether  other  rates  should  be  established,  and 
it  might  have  used  methods  like  those  of  judi 
cial  tribunals  in  the  endeavor  to  elicit  the  facts. 
It  is  "the  nature  of  the  final  act"  that  deter 
mines  "the  nature  of  the  previous  inquiry. " 
.  .  .  The  right  of  the  carrier  to  make  its  own 
intrastate  rates  is  subject  to  the  law  of  the 
State  constitutionally  enacted.  In  the  absence 
of  a  legislative  rate,  it  is  the  province  of  the 
courts  in  deciding  cases  that  arise;  between 
shippers  and  carriers  to  pass  upon  the  reason 
ableness  of  the  compensation  which  the  carrier 
has  demanded  for  its  services.  In  so  doing, 
the  courts  apply  the  common  law.  But  it  is  the 
province  of  the  legislature  to  make  the  law ;  and 
when  the  legislature,  or  the  body  acting  under 
its  authority,  establishes  the  rate  to  be  there 
after  charged  by  the  carrier,  it  is  the  duty  of  the 
courts  to  enforce  the  rule  of  law  so  made  un 
less  the  constitutional  limits  of  the  rate-mak 
ing  power  have  been  transgressed.  The  rate- 


94  CHAELES  E.  HUGHES 

making  power  necessarily  implies  a  range  of 
legislative  discretion;  and,  so  long  as  the  legis 
lative  action  is  within  its  proper  sphere,  the 
courts  are  not  entitled  to  interpose  and  upon 
their  own  investigation  of  traffic  conditions  and 
transportation  problems  to  substitute  their 
judgment  with  respect  to  the  reasonableness  of 
rates  for  that  of  the  legislature  or  of  the  Rail 
road  Commission  exercising  its  delegated 
power.  It  may  be  assumed  that  the  statute  of 
Kentucky  forbade  arbitrary  action;  it  required 
a  hearing,  the  consideration  of  the  relevant 
statements,  evidence  and  arguments  submitted, 
and  a  determination  by  the  Commission 
whether  the  existing  rates  were  excessive.  But, 
on  these  conditions  being  fulfilled,  the  questions 
of  fact  which  might  arise  as  to  the  reasonable 
ness  of  the  existing  rates  in  the  consideration 
preliminary  to  legislative  action  would  not  be 
come,  as  such,  judicial  questions  to  be  reex- 
amined  by  the  courts.  The  appropriate  ques 
tions  for  the  courts  would  be  whether  the  Com 
mission  acted  within  the  authority  duly  con 
ferred  by  the  legislature,  and  also,  so  far  as 
the  amount  of  compensation  permitted  by  the 
prescribed  rates  is  concerned,  whether  the 
Commission  went  beyond  the  domain  of  the 
State's  legislative  power  and  violated  the  con 
stitutional  rights  of  property  by  imposing  con- 
fiscatory  requirements.  .  .  .  Undoubtedly,  a 
State  may  permit  appeals  to  its  courts  from 
the  rate-making  orders  of  its  Railroad  Commis 
sion  and,  upon  the  review  of  such  orders,  it  may 
expressly  authorise  its  judicial  tribunals  to  in 
vestigate  and  decide  questions  which  would 


THE  LAW  AND  THE  FACTS         95 

otherwise  not  belong  to  them,  or  even  to  act 
legislatively.  But  the  guaranties  of  the  Four 
teenth  Amendment  do  not  entitle  the  carrier  to 
the  exercise  by  the  courts  of  such  extra- judicial 
authority. 

As  to  the  belief  that  regulative  legislation 
and  governmental  action  should  be  based  upon, 
and  should  from  time  to  time  be  shaped  accord 
ing  to,  a  thorough  disclosure  of  the  relevant 
social  facts,  rather  than  predetermined  con 
cepts  of  Constitutional  construction,  economic 
theory,  or  governmental  polity:  More  than  by 
anything  else — even  more  than  by  the  formid 
able  array  of  forward-looking  decisions  which 
bear  his  name  and  the  imprint  of  the  free- 
spirited  play  of  his  facile  mind — the  unmistak 
able  alignment  of  the  statesmanship  of  Mr. 
Hughes  with  the  constructive  social  statesman 
ship  of  his  day  and  age  is  established  by  his 
freedom  from  academic  theorising  and  eco 
nomic  preconception,  and  his  willingness  to  face 
facts  as  from  time  to  time  disclosed.  In  inti 
mate  knowledge  of  the  actualities  of  industrial 
conditions — for  example,  of  the  atmosphere  of 
the  plant  of  a  great  steel  corporation  or  a  syn 
dicate  of  textile  manufactories,  or  of  the  actual 
environment  in  which  men  and  women,  boys  and 
girls  of  factory  towns  have  so  much  difficulty 
in  preserving  the  good,  the  true  and  beautiful 
in  their  lives — he  has  perhaps  not  the  grasp  and 


96  CHAELES  E.  HUGHES 

perspective  possessed  by  men  who  have  been 
grappling  at  first  hand  with  these  problems  dur 
ing  most  of  their  lives.  But  this  thing  stands 
out  through  his  executive  and  judicial  career: 
He  has  a  passion  for  quickly  finding  out  the 
facts,  and  when  he  finds  them,  and  finds  them 
all,  he  follows  them  with  a  fidelity  and  a  free 
readjustment  of  policy  to  experience,  which, 
after  all,  is  the  real  test  of  the  highest  pro 
gressive  statesmanship  in  a  period  of  economic 
and  social  reconstruction. 

This  pragmatism  and  freedom  from  precon 
ception  is  likewise  of  the  essence  of  American 
institutions,  although  it  has  at  times  seemed 
absent  from  American  statesmanship.  As  Von 
Hoist  says,  in  his  "Constitutional  Law  of  the 
United  States": 

Like  every  Constitution  which  has  or  can  have 
a  real  life,  that  of  the  United  States  of  America 
is  a  result  of  actual  circumstances  of  the  past 
and  the  present,  and  not  a  product  of  abstract 
academic  theorising.  ...  A  Constitution  which 
resembles  a  Chinese  shoe  can  suit  only  a  Nation 
which  has  sunk  into  Chinese  inertia.  .  .  .  The 
real  essence  of  the  Constitution,  as  it  takes  con 
crete  shape  in  legislation,  must  grow  and  change 
with  the  advancing  public  and  private  life  of 
the  people.  ...  If  the  statesman  is  bound  to 
be,  in  the  practical  discharge  of  his  duties,  a 
conscientious  jurist,  the  jurist  must,  in  his  work 
of  examination  and  testing,  keep  always  in  mind 
the  point  of  view  of  the  statesman. 


THE  LAW  AND  THE  FACTS          97 

Perhaps  it  has  been  a  lifetime  fondness  for 
the  physical  sciences  in  hours  of  relaxation, 
perhaps  a  natural  bent  of  mind  or  the  hard  les 
son  of  experience  at  the  Bar  and  in  great  legis 
lative  inquiries,  that  has  given  to  Mr.  Hughes 
this  quiet,  unpretentious,  thorough-going  fond 
ness  for  a  fact  and  aversion  to  merely  academic 
theorising  and  preconception;  but  his  pragma 
tism  of  outlook  is  of  the  grass  roots  of  progres 
sive  and  constructive  statesmanship,  in  judicial 
as  well  as  administrative  position.  As  Profes 
sor  Roscoe  Pound,  perhaps  the  most  clear 
sighted  of  all  American  students  of  modern  pub 
lic  law,  said,  in  1909 : 


Jurisprudence  is  the  last  in  the  march  of  the 
sciences  away  from  the  method  of  deduction, 
from  predetermined  conceptions.  The  socio 
logical  movement  in  jurisprudence,  the  move 
ment  for  pragmatism  as 'a  philosophy  of  law, 
the  movement  for  the  adjustment  of  principles 
and  doctrines  to  the  human  conditions  they  are 
to  govern  rather  than  assumed  first  principles, 
the  movement  for  putting  the  human  factor  in 
the  central  place  and  relegating  logic  to  its  true 
position  as  an  instrument,  has  scarcely  shown 
itself  as  yet  in  America. 

The  predominance  of  the  varying  social  fac 
tor  has,  from  a  somewhat  different  angle,  been 
expressed  by  Justice  Holmes  of  the  Supreme 
Court,  in  his  observation  that 


98  CHARLES  E.  HUGHES 

...  in  law  we  are  dealing  almost  wholly 
with  considerations  of  social  advantage  which 
very  rarely  permit  of  quantitative  determina 
tion. 

The  broad  bearings  of  the  proper  interpre 
tation  and  application  of  the  '  '  Bills  of  Rights ' ' 
were  elaborated  upon  by  Justice  Hughes  before 
the  New  York  State  Bar  Association  last 
January : 

Recurring  to  the  work  of  the  courts, — it  is 
evident  that  legislative  activity  is  constantly 
raising  questions  involving  not  simply  the  con 
stitutional  adjustment  of  national  and  State 
power,  but  also  the  application  of  the  historic 
clauses  of  our  Bills  of  Rights  securing  life,  lib 
erty  and  property.  Here,  also,  our  system  is 
under  an  increased  strain  as  efforts  to  impose 
new  obligations  are  brought  to  the  constitu 
tional  test.  In  view  of  the  impossibility  of  com 
prehensive  definition  of  the  content  of  the  great 
guaranties  of  due  process  and  equal  protection, 
and  of  the  necessity  for  what  Mr.  Justice  Miller 
called  the  "gradual  process  of  judicial  inclusion 
and  exclusion,  as  the  cases  presented  for  deci 
sion  require/'  there  is  peculiar  danger  of  defec 
tive  generalisation  in  a  critical  estimate  of  re 
sults.  For  a  fair  view  of  judicial  work  in  this 
field,  it  must  be  judged  in  its  entirety  and  with 
out  losing  sight  of  the  broad  range  of  legisla 
tive  discretion  which  is  every  day  recognised 
despite  constant  efforts  to  induce  judicial  deci 
sion  upon  matters  which  are  essentially  mere 


THE    " BILLS    OF    EIGHTS"          99 

questions  of  legislative  expediency  and  over 
which  the  courts  have  no  constitutional  author 
ity.  Even  with  respect  to  procedure,  which  is  of 
the  essence  of  due  process,  it  has  repeatedly 
been  held  that  there  was  no  intention  by  the 
adoption  of  the  Fourteenth  Amendment  to  con 
fine  State  practice  to  archaic  forms.  For,  as 
Mr.  Justice  Moody  said,  in  Twining  v.  New  Jer 
sey,  if  that  were  so,  "the  procedure  of  the  first 
half  of  the  seventeenth  century  would  be  fas 
tened  upon  the  American  jurisprudence  like  a 
strait-jacket,  only  to  be  unloosed  by  constitu 
tional  amendment,"  and  that,  he  continued, 
quoting  from  Mr.  Justice  Matthews  in  Hurtado 
v.  California,  would  be  "to  deny  every  quality 
of  the  law  but  its  age,  and  to  render  it  incapable 
of  progress  or  improvement."  Thus  it  has 
been  found,  for  example,  that  there  was  nothing 
in  the  guaranty  %of  due  process  of  law  contained 
in  the  Fourteenth  Amendment  which  required  a 
State  to  proceed  by  indictment  by  a  grand  jury 
(instead  of  by  information)  or  by  trial  by  a 
petit  jury  of  twelve  persons  in  prosecutions  for 
infamous  crimes,  or  from  dispensing  with  the 
exemption  from  compulsory  self-incrimination. 
And  in  the  operation  of  this  amendment  accord 
ing  to  our  established  constitutional  doctrine 
as  a  restriction  upon  the  enactment  of  substan 
tive  legislation,  it  is  manifest  that  the  prohibi 
tion  was  not  intended  to  override  legislative 
action  by  the  views  of  judges  as  to  its  wisdom. 
The  amendment  was  the  affirmation  of  indi 
vidual  rights  deemed  to  be  fundamental.  It  was 
incorporated  in  the  Constitution  with  full 
knowledge  of  the  judicial  duty  to  apply  the  su- 


100  CHARLES  E.  HUGHES 

preme  law  in  the  decision  of  controversies. 
What  was  thus  sought  was  not  a  privilege  to 
deny  the  legislative  authority  to  enact  reason 
able  measures  for  the  promotion  of  the  safety, 
health,  jnorals  and  welfare  of  the  people,  not 
to  make  improvement  or  rational  experimen 
tation  impossible,  but  to  preserve  and  enforce 
the  primary  and  fundamental  conceptions  of 
justice  which  demand  proper  notice  and  oppor 
tunity  to  be  heard  before  a  competent  tribunal 
in  advance  of  condemnation,  immunity  from  the 
confiscation  of  property,  and,  with  respect  to 
every  department  of  government,  freedom  from 
the  exercise  of  purely  arbitrary  power.  The 
perpetuity  of  this  judicial  function  characteris 
tic  of  our  system,  in  my  judgment,  lies  with  the 
courts  themselves  rather  than  with  their  critics. 
With  the  alternative  of  legislative  power,  un 
controlled  no  matter  how  indulged,  the  people 
have  preferred  the  interposition  of  the  judicial 
scrutiny  in  order  to  conserve  what  have  been 
deemed  to  be  the  essentials  of  liberty.  It  is  not 
a  function  likely  to  be  disturbed  so  long  as 
judges  in  the  discharge  of  their  delicate  and 
difficult  duty  exhibit  a  profound  knowledge  and 
accurate  appreciation  of  the  facts  of  commercial 
and  industrial  activity,  and  by  their  intelligence 
and  fidelity  in  the  application  of  the  Constitu 
tion  according  to  its  true  intent  commend  its 
guaranties  to  the  judgment  of  a  fair-minded 
people  jealous  alike  of  public  rights  and  in 
dividual  opportunities. 


CHAPTER  IV 

THE   SAFEGUAKDS   AGAINST  ADTJLTEKATION  ANT) 
MIS-BKANDING   OF    FOODS    AND    DEUGS 

ONE  of  the  notable  public  services  performed 
by  Mr.  Hughes  as  a  Justice  of  the  Supreme 
Court  was  in  connection  with  the  Food  and 
Drugs  Act  of  1906  and  similar  statutes,  State 
and  Federal,  enacted  to  aid  the  public  in  pro 
tecting  itself  from  "  notorious  abuses "  in  con 
nection  with  the  impurity  of  foods  and  drugs 
and  the  falsity  of  representations  made  as  to 
their  quality,  constituents,  and  curative  prop 
erties.  To  the  interpretation  and  application 
of  these  enactments  and  the  analysis  of  the  in 
tricate  trade  conditions  on  which  their  applica 
tion  often  hinges,  he  brought  a  wealth  of  ad 
ministrative  experience,  a  mind  accustomed  to 
the  exact  facts  of  physical  science  and  commer 
cial  life,  and  a  broad  understanding  of  the  con 
ditions  with  which  the  community  was  trying 
to  grapple,  in  this  field  so  largely  new  to  admin 
istrative  law. 

The  first  dissenting  opinion  1  which  he  wrote 
as  a  member  of  the  Supreme  Court  dealt  with 

1Z7.  S.  vs.  Johnson  (221  U.  S.  Reports,  page  488). 
101 


102  CHARLES  E.  HUGHES 

the  Food  and  Drugs  Act  of  1906.  Congress  had 
prescribed  penalties  for  what  it  termed  the 
"mis-branding"  of  drugs,  and  a  man  named 
Johnson  was  charged  with  delivering  for  ship 
ment  in  interstate  commerce  packages  and  bot 
tles  of  drugs  alleged  to  have  been  "  mis- 
branded"  within  the  meaning  of  the  Act.  Cer 
tain  of  the  bottles  were  labelled  "Cancerine 
tablets"  and  "Cancerine";  the  combination 
was  known  as  "Dr.  Johnson's  Mild  Combina 
tion  Treatment  for  Cancer" ;  and  the  labels  con 
tained  other  statements  explaining  at  length  the 
curative  properties  of  the  contents,  if  taken  in 
treatment  of  cancer  or  other  malignant  mala 
dies.  The  majority  of  the  Court  were  of  the 
opinion  that  inasmuch  as  fraudulent  "mis- 
branding"  necessarily  consisted  of  mis-state 
ments  of  fact,  rather  than  of  opinion,  the  stat 
ute  must  be  construed  to  prohibit  false  state 
ments  only  as  to  the  identity  of  the  article — for 
example,  as  to  its  purity,  quality,  strength,  in 
gredients,  and  the  like — and  could  not  be  held 
to  condemn  false  statements  by  the  manufac 
turer  as  to  what  the  article  would  cure. 

Justice  Hughes  entered  emphatic  dissent 
from  this  view,  and  Justices  Harlan  and  Day 
concurred  with  him.  To  label  a  worthless  liquid 
a  cancer  curative  and  to  sell  tablets  of  inert 
matter  with  assurance  of  its  proved  efficacy  in 
relief  from  deadly  diseases,  seemed  a  false  rep 
resentation  of  the  principal  fact  as  to  the  article 
sold,  and  he  urged  with  great  earnestness  that 


FOODS  AND  DRUGS  103 

Congress  had  aimed  at  false  statements  of 
fact  as  to  curative  properties  of  a  drug,  at  least 
no  less  than  at  anything  else  falsely  asserted  as 
to  it.  The  majority  construction  seemed  there 
fore  to  defeat  the  legislative  purpose  and  leave 
the  Act  largely  ineffective.  He  said,  in  part : 

According  to  the  construction  placed  upon 
the  statute  by  the  court  below  in  quashing  the 
indictment,  if  one  puts  upon  the  market,  in 
interstate  commerce,  tablets  of  inert  matter  or 
a  liquid  wholly  worthless  for  any  curative  pur 
poses  as  he  well  knows,  with  the  label  "  Cancer 
Cure"  or  "Remedy  for  Epilepsy,"  he  is  not 
guilty  of  an  offence,  for  in  the  sense  attributed 
by  that  construction  to  the  words  of  the  statute 
he  has  not  made  a  statement  regarding  the 
article  which  is  false  or  misleading  in  any 
particular. 

I  fail  to  find  a  sufficient  warrant  for  this 
limitation,  and  on  the  contrary,  it  seems  to  me 
to  be  opposed  to  the  intent  of  Congress  and  to 
deprive  the  act  of  a  very  salutary  effect.  .  .  . 
.  It  is,  of  course,  true,  that  when  Congress  used 
the  words  "false  or  misleading  statement"  it 
referred  to  a  well-defined  category  in  the  law 
and  must  be  taken  to  have  intended  statements 
of  fact  and  not  mere  expressions  of  opinion. 
The  argument  is  that  the  curative  properties  of 
articles  purveyed  as  medicinal  preparations  are 
matters  of  opinion,  and  the  contrariety  of  views 
among  medical  practitioners,  and  the  conflict 
between  the  schools  of  medicine,  are  impres 
sively  described.  But,  granting  the  wide  do- 


104  CHAELES  E.  HUGHES 

main  of  opinion,  and  allowing  the  broadest 
range  to  the  conflict  of  medical  views,  there  still 
remains  a  field  in  which  statements  as  to  cura 
tive  properties  are  downright  falsehoods  and  in 
no  sense  expressions  of  judgment.  This  field 
I  believe  this  statute  covers.  .  .  . 

The  question  then  is  whether,  if  an  article 
is  shipped  in  interstate  commerce,  bearing  on 
its  label  a  representation  that  it  is  a  cure  for 
a  given  disease,  when  on  a  showing  of  the  facts 
there  would  be  a  unanimous  agreement  that  it 
was  absolutely  worthless  and  an  out  and  out 
cheat,  the  act  of  Congress  can  be  said  to  apply 
to  it.  To  my  mind  the  answer  appears 
clear.  .  .  . 

Nor  does  it  seem  to  me  that  any  serious  ques 
tion  arises  in  this  case  as  to  the  power  of  Con 
gress.  I  take  it  to  be  conceded  that  mis-brand 
ing  may  cover  statements  as  to  strength,  qual 
ity  and  purity.  But  so  long  as  the  statement  is 
not  as  to  matter  of  opinion,  but  consists  of  a 
false  representation  of  fact — in  labelling  the 
article  as  a  cure  when  it  is  nothing  of  the  sort 
from  any  point  of  view,  but  wholly  worthless— - 
there  would  appear  to  be  no  basis  for  a  consti 
tutional  distinction.  It  is  none  the  less  descrip 
tive — and  falsely  descriptive — of  the  article. 
Why  should  not  worthless  stuff,  purveyed 
under  false  labels  as  cures,  be  made  contra 
band  of  interstate  commerce, — as  well  as  lot 
tery  tickets? 

This  was  in  May  of  1911.  The  following  year 
Congress  amended  the  Food  and  Drugs  Act,  by 


FOODS  AND  DRUGS  105 

the  so-called  "Sherley  Amendment/'  which 
provided  that  for  the  purposes  of  that  Act  a 
drug  should  be  deemed  to  be  "mis-branded": 

If  its  package  or  label  shall  bear  or  contain 
any  statement,  design  or  device  regarding  the 
curative  or  therapeutic  effect  of  such  article 
.  .  .  which  is  false  and  fraudulent. 

This  was  of  course  the  orderly  procedure  in  a 
responsible  democracy:  If  the  Court,  as  the 
agency  of  the  most  expert  interpretation  of 
the  written  statutes,  finds  that  the  language 
thus  far  used  is  not  sufficient  to  accomplish 
what  was  probably  the  legislative  purpose, 
prompt  action  by  the  legislative  branch  of  gov 
ernment  clears  the  difficulty  and  makes  unmis 
takable  the  intent  to  reach  by  legislation  the 
particular  abuse  as  to  which  there  was  question 
of  the  efficacy  of  the  original  enactment.  Con 
gress  having  thus  given  legislative  sanction  to 
the  interpretation  which  Justice  Hughes  had 
unsuccessfully  from  the  first  endeavoured  to 
have  the  Court  place  upon  the  term  "  mis- 
branding,  "  the  Supreme  Court,  on  January  10, 
1916,  through  an  opinion l  written  by  Justice 
Hughes,  unanimously  upheld  the  constitutional 
ity  of  the  Sherley  Amendment  and  sustained 
the  condemnation  and  seizure  of  cases  of  drugs 
known  as  "Eckman's  Alterative,"  which  were 

1  Seven  Cases  of  Eckman's  Alterative  vs.  U.  S.   (239  U.  S. 
Beports,  page  510). 


106  CHAELES  E.  HUGHES 

sent  out  with  circulars  containing  the  untrue 
statement:  "Effective  as  a  preventative  for 
pneumonia/'  "We  know  that  it  has  cured 
and  has  and  will  cure  tuberculosis.'' 

The  last  of  the  cases  decided  by  Justice 
Hughes  under  the  Food  and  Drugs  Act  involved 
the  long-litigated  properties  of  "Coca  Cola" 
and  the  propriety  of  its  shipment  in  interstate 
commerce.  The  Federal  Government  had,  un 
der  the  provisions  of  that  Act,  filed  a  libel  for 
the  condemnation  of  certain  cases  of  Coca  Cola 
which  had  been  seized  while  in  course  of  trans 
portation,  for  sale,  from  Atlanta  to  Chatta 
nooga.  The  charge  of  the  Government  was  that 
the  product  was  both  " adulterated "  and  "mis- 
branded,"  within  the  meaning  of  the  statute. 
The  claim  as  to  adulteration  was,  in  substance, 
that  the  beverage  contained  ' '  an  added  poison 
ous  or  other  added  deleterious  ingredient" — 
caffeine — which  rendered  the  product  harmful 
to  health.  The  claim  as  to  "mis-branding" 
was  that  the  name  "Coca  Cola"  was  a  repre 
sentation  of  the  presence  of  both  "coca"  and 
"cola";  that  the  beverage  in  fact  contained  no 
coca  and  very  little,  if  any,  cola;  and  that  ac 
cordingly  the  product  was  but  an  "imitation" 
of  those  substances,  offered  for  sale  under 
their  "distinctive  name,"  within  the  inhibition 
of  the  statute. 

The  Coca  Cola  Company  at  once  claimed  the 
goods  which  the  Government  had  seized,  and 


FOODS  AND  DRUGS  107 

demanded  a  jury  trial,  as  was  its  right.  The  an 
swer  of  the  Coca  Cola  Company  admitted  that 
the  product  contained  as  one  of  its  ingredients 
"a  small  portion  of  caffeine/'  but  denied  that 
the  caffeine  in  this  quantity  was  either  an 
" added  ingredient,"  within  the  meaning  of  the 
law,  or  i '  an  added  deleterious  ingredient  which 
may  render  such  article  injurious  to  health. " 
The  company  also  denied  that  there  were  any 
such  substances  known  as  either  "coca"  or 
"cola"  under  "their  own  distinctive  names," 
and  asserted  that  the  beverage  did,  however, 
contain  certain  elements  or  substances  derived 
from  cola  nuts  and  coca  leaves,  which  the  com 
pany  said  was  sufficient  to  require  dismissal  of 
a  "mis-branding"  charge. 

After  taking  a  great  deal  of  testimony,  the 
United  States  District  Judge  who  heard  the 
case  directed  a  verdict  in  favour  of  the  Coca 
Cola  Company,  without  letting  the  jury  pass 
upon  the  issues,  and  the  Circuit  Court  of  Ap 
peals  sustained  his  action.  The  question  be-  ' 
fore  the  Supreme  Court,  therefore,  was  whether 
the  Government  was  right  in  its  contentions, 
at  least  to  the  extent  that  the  disputed  questions 
of  fact  as  to  the  nature  and  effect  of  Coca  Cola 
and  its  ingredients  should  have  been  submitted 
to  the  jury.  Justice  Hughes,  in  an  opinion  x 
handed  down  by  the  Court  on  May  22,  1916, 
sustained  fully  the  Government's  contentions 
as  to  the  vitality  and  efficacy  of  the  Food  and 

1  U.  S.  vs.  Coca  Cola  Co.  (241  U.  S.  Eeports,  page  265). 


108  CHARLES  E.  HUGHES 

Drugs  Act,  and  sent  the  case  back  for  deter 
mination  in  the  light  of  the  interpretation 
placed  upon  the  statute  by  the  highest  Court. 

Recognising  "the  extreme  importance  of  the 
question  thus  presented  with  respect  t.o  the  ap 
plication  of  the  Act  to  articles  of  food  sold 
under  trade  names,"  Justice  Hughes'  devo 
tion  to  realities  and  his  rugged  common  sense 
in  analysis  of  trade  conditions  led  him  to  clear 
away  the  elaborate  artifice  of  statutory  con 
struction  with  which  it  was  sought  to  paralyse 
the  practical  workings  of  the  law.  He  held 
with  directness  and  conciseness  that 

The  facts  that  a  formula  has  been  made  up 
and  followed  and  a  distinctive  name  adopted  do 
not  suffice  to  take  an  article  from  the  reach 
of  the  statute;  that  the  standard  by  which  the 
combination  in  such  a  case  is  to  be  judged  is 
not  necessarily  the  combination  itself;  that  a 
poisonous  or  deleterious  ingredient  with  the 
stated  injurious  effect  may  still  be  an  added 
ingredient  in  the  statutory  sense,  although  it  is 
covered  by  the  formula  and  made  a  constituent 
of  the  article  sold. 

Likewise  he  ruled  that  the  terms  "  adultera 
tion  "  and  "mis-branding"  are  used  in  the  stat 
ute  in  a  special  sense,  have  their  own  glossary 
in  that  use,  and  are  not  controlled  by  their  ordi 
nary  definitions.  For  example,  "we  cannot 
.  .  .  assume  that  simply  because  a  prepared 
food  has  its  formula  and  distinctive  name,  it  is 


FOODS  AND  DRUGS  109 

not,  as  such,  adulterated.  ...  It  is  plain  that 
the  article  may  be  '  adulterated, '  if  in  fact  it  con 
tains  an  '  ingredient  deleterious  or  detrimental 
to  health.'  "  Again,  "The  substance  which 
renders  the  article  injurious,  and  the  introduc 
tion  of  which  causes  *  adulteration,'  may  be  one 
of  the  '  component  parts,  or  constituents,  of  the 
article  which  is  the  subject  of  the  described 
traffic.'  "  Finally,  he  held  that  "proprietary 
foods,  sold  under  distinctive  names,  are  within 
the  purview  of  the  provision"  against  "adul 
teration"  and  "mis-branding,"  and  this  with 
out  regard  to  whether  "they  were  already  on 
the  market  when  the  statute  was  passed." 

Justice  Hughes'  reasoning  upon  some  of  the 
points  involved  is  strikingly  direct  and  prag 
matic  : 

Having  these  considerations  in  mind,  we 
deem  it  to  be  clear  that,  whatever  difficulties 
there  may  be  in  construing  the  provision,  the 
claimant's  argument  proves  far  too  much.  We 
are  not  now  dealing  with  the  question  whether 
the  caffeine  did,  or  might,  render  the  article  in 
question  injurious;  that  is  a  separate  inquiry. 
The  fundamental  contention  of  the  claimant,  as 
we  have  seen,  is  that  a  constituent  of  a  food 
product  having  a  distinctive  name  cannot  be 
an  "added"  ingredient.  In  such  case,  the 
standard  is  said  to  be  the  food  product  itself 
which  the  name  designates.  It  must  be,  it  is 
urged,  this  "finished  product"  that  is  "adul 
terated."  In  that  view,  there  would  seem  to 


110  CHABLES  E.  HUGHES 

be  no  escape  from  the  conclusion  that  however 
poisonous  or  deleterious  the  introduced  in 
gredient  might  be,  and  however  injurious  its 
effect,  if  it  be  made  a  constituent  of  a  product 
having  its  own  distinctive  name  it  is  not  within 
the  provision.  If  this  were  so,  the  'statute 
would  be  reduced  to  an  absurdity.  Manufac 
turers  would  be  free,  for  example,  to  put  ar 
senic  or  strychnine  or  other  poisonous  or  dele 
terious  ingredients  with  an  unquestioned  in 
jurious  effect  into  compound  articles  of  food, 
provided  the  compound  were  made  according 
to  formula  and  sold  under  some  fanciful  name 
which  would  be  distinctive.  When  challenged 
upon  the  ground  that  the  poison  was  an 
" added"  ingredient,  the  answer  would  be  that 
without  it  the  so-called  food  product  would 
not  be  the  product  described  by  the  name. 
Further,  if  an  article  purporting  to  be  an  ordi 
nary  food  product  sold  under  its  ordinary 
name  were  condemned  because  of  some  added 
deleterious  ingredient,  it  would  be  difficult  to 
see  why  the  same  result  could  not  be  attained 
with  impunity  by  composing  a  formula  and 
giving  a  distinctive  name  to  the  article  with 
the  criticised  substance  as  a  component  part. 
We  think  that  an  analysis  of  the  statute  shows 
such  a  construction  of  the  provision  to  be  inad 
missible.  Certain  incongruities  may  follow 
from  any  definition  of  the  word  " added,"  but 
we  cannot  conclude  that  it  was  the  intention  of 
Congress  to  afford  immunity  by  the  simple 
choice  of  a  formula  and  a  name.  It  does  not 
seem  to  us  to  be  a  reasonable  construction  that 
in  the  case  of  "proprietary  foods"  manufac- 


FOODS  AND  DRUGS  111 

tared  under  secret  formulas  Congress  was 
simply  concerned  with  additions  to  what  such 
formulas  might  embrace.  Undoubtedly,  it  was 
not  desired  needlessly  to  embarrass  manufac 
turers  of  " proprietary  foods"  sold  under  dis 
tinctive  names,  but  it  was  not  the  purpose  of 
the  Act  to  protect  articles  of  this  sort  regard 
less  of  their  character.  Only  such  food  prod 
ucts  as  contain  "no  unwholesome  added  in 
gredient"  are  within  the  saving  clause  and 
in  using  the  words  quoted  we  are  satisfied  that 
Congress  did  not  make  the  proprietary  article 
its  own  standard. 

Equally  extreme  and  inadmissible  is  the  sug 
gestion  that  where  a  "proprietary  food"  would 
not  be  the  same  without  the  harmful  ingredient, 
to  eliminate  the  latter  would  constitute  an 
"adulteration"  under  §  7,  subdivision  Third, 
by  the  abstraction  of  a  "valuable  constituent." 
In  that  subdivision  Congress  evidently  refers 
to  articles  of  food  which  normally  are  not 
within  the  condemnation  of  the  Act.  Congress 
certainly  did  not  intend  that  a  poisonous  or 
deleterious  ingredient  which  made  a  proprie 
tary  food  an  enemy  to  the  public  health  should 
be  treated  as  a  "valuable  constituent,"  or  to 
induce  the  continued  use  of  such  injurious  in 
gredients  by  making  their  elimination  an 
adulteration  subject  to  the  penalties  of  the 
statute. 

It  is  apparent,  however,  that  Congress  in 
using  the  word  "added"  had  some  distinction 
in  view.  In  the  Senate  bill  (for  which  the 
measure  as  adopted  was  a  substitute)  there  was 
a  separate  clause  relating  to  "liquors,"  provid- 


112  CHAELES  E.  HUGHES 

ing  that  the  article  should  be  deemed  to  be 
adulterated  if  it  contained  "any  added  ingredi 
ent  of  a  poisonous  or  deleterious  character' '; 
while  in  the  case  of  food  (which  was  defined  as 
excluding  liquors)  the  article  was  to  be  deemed 
to  be  "adulterated"  if  it  contained  "any  added 
poisonous  or  other  ingredient  which  may  ren 
der  such  article  injurious  to  human  health." 
Cong.  Bee.,  59th  Cong.,  1st  Sess.,  Vol.  40,  p.  897. 
In  explaining  the  provision  as  to  "liquors," 
Senator  Heyburn,  the  chairman  of  the  Senate 
Committee  having  the  bill  in  charge,  stated  to 
the  Senate  (Id.,  p.  2647) :  "The  word  ' added/ 
after  very  mature  consideration  by  your  com 
mittee,  was  adopted  because  of  the  fact  that 
there  is  to  be  found  in  nature's  products  as  she 
produces  them,  poisonous  substances  to  be  de 
termined  by  analysis.  Nature  has  so  combined 
them  that  they  are  not  a  danger  or  an  evil— 
that  is,  so  long  as  they  are  left  in  the  chemical 
connection  in  which  nature  has  organised  them ; 
but  when  they  are  extracted  by  the  artificial 
processes  of  chemistry  they  become  a  poison. 
You  can  extract  poison  from  grain  or  its  prod 
ucts  and  when  it  is  extracted  it  is  a  deadly 
poison;  but  if  you  leave  that  poison  as  nature 
embodied  it  in  the  original  substances  it  is  not 
a  dangerous  poison  or  an  active  agency  of 
poison  at  all. — So,  in  order  to  avoid  the  threat 
that  those  who  produce  a  perfectly  legitimate 
article  from  a  natural  product  might  be  held 
liable  because  the  product  contained  nature's 
poison  it  was  thought  sufficient  to  provide 
against  the  adding  of  any  new  substance  that 
was  in  itself  a  poison,  and  thus  emphasising  the 


FOODS  AND  DRUGS  113 

evils  of  existing  conditions  in  nature 's  product. 
That  is  the  reason  the  word  ' added'  is  in  the 
bill.  Fusel  oil  is  a  poison.  If  you  extract  it, 
it  becomes  a  single  active  agency  of  destruction, 
but  allow  it  to  remain  in  the  combination  where 
nature  has  placed  it,  and,  while  it  is  nominally 
a  poison,  it  is  a  harmless  one,  or  comparatively 
so."  For  the  Senate  bill,  the  House  of  Repre 
sentatives  substituted  a  measure  which  had  the 
particular  provisions  now  under  consideration 
in  substantially  the  same  form  in  which  they 
were  finally  enacted  into  law.  ( Section  7,  subd. 
Fifth;  §  8,  subd.  Fourth,  provisos.)  And  the 
Committee  of  the  House  of  Representatives  in 
reporting  this  substituted  measure  said  (H.  R. 
Report,  No.  2118,  59th  Cong.,  1st  Sess.,  pp. 
6,  7,  11) :  "The  purpose  of  the  pending  meas 
ure  is  not  to  compel  people  to  consume  par 
ticular  kinds  of  foods.  It  is  not  to  compel 
manufacturers  to  produce  particular  kinds  or 
grades  of  foods.  One  of  the  principal  objects 
of  the  bill  is  to  prohibit  in  the  manufacture  of 
foods  intended  for  interstate  commerce  the  ad 
dition  of  foreign  substances  poisonous  or  dele 
terious  to  health.  The  bill  does  not  relate  to 
any  natural  constituents  of  food  products  which 
are  placed  in  the  foods  by  nature  itself.  It  is 
well  known  that  in  many  kinds  of  foods  in  their 
^natural  state  some  quantity  of  poisonous  or 
deleterious  ingredients  exists.  How  far  these 
substances  may  be  deleterious  to  health  when 
the  food  articles  containing  them  are  consumed 
may  be  a  subject  of  dispute  between  the  scien 
tists,  but  the  bill  reported  does  not  in  any  way 
consider  that  question.  If,  however,  poison- 


114  CHARLES  E.  HUGHES 

ous  or  deleterious  substances  are  added  by  man 
to  the  food  product,  then  the  bill  declares  the 
article  to  be  adulterated  and  forbids  interstate 
traffic." 

This  statement  throws  light  upon  the  inten 
tion  of  Congress.  Illustrations  are  given  to 
show  possible  incongruous  results  of  the  test, 
but  they  do  not  outweigh  this  deliberate  decla 
ration  of  purpose ;  nor  do  we  find  in  the  subse 
quent  legislative  history  of  the  substituted 
measure  containing  the  provision  any  opposing 
statement  as  to  the  significance  of  the  phrase. 

With  the  way  thus  cleared  for  a  remedial 
application  of  the  statute,  Justice  Hughes  took 
up  the  two  questions  involved  in  the  facts  of 
the  case  at  bar.  Was  the  caffeine  an  "  added 
ingredient "1  As  to  this  he  said: 


In  the  present  case,  the  article  belongs  to  a 
familiar  group ;  it  is  a  syrup.  It  was  originally 
called  "Coca  Cola  Syrup  and  Extract."  It  is 
produced  by  melting  sugar, — the  analysis  show 
ing  that  52.64  per  cent,  of  the  product  is  sugar 
and  42.63  per  cent,  is  water.  Into  the  syrup 
thus  formed  by  boiling  the  sugar,  there  are 
introduced  colouring,  flavouring,  and  other  in 
gredients,  in  order  to  give  the  syrup  a  dis 
tinctive  character.  The  caffeine,  as  has  been 
said,  is  introduced  in  the  second  or  third  "melt 
ing."  We  see  no  escape  from  the  conclusion 
that  it  is  an  "added"  ingredient  within  the 
meaning  of  the  statute. 


FOODS  AND  DRUGS  115 

Was  the  caffeine  "  poisonous "  or  "  deleteri 
ous'  '?  This  question  he  says  the  jury  should 
have  been  permitted  to  decide  and  so  there 
must  be  a  re-trial,  with  an  application  of  the 
statute  as  defined  by  the  Supreme  Court : 

Upon  the  remaining  question  whether  the 
caffeine  was  a  poisonous  or  deleterious  in 
gredient  which  might  render  the  article  injuri 
ous  to  health,  there  was  a  decided  conflict  of 
competent  evidence.  The  Government's  ex 
perts  gave  testimony  to  the  effect  that  it  was, 
and  "the  claimant  introduced  evidence  to  show 
the  contrary.  It  is  sufficient  to  say  that  the 
question  was  plainly  one  of  fact  which  was  for 
the  consideration  of  the  jury. 

In  a  manner  equally  pointed  and  cogent  the 
question  of  "mis-branding"  involved  in*  the 
name  "Coca,  Cola"  was  discussed,  and  the 
rule  laid  down  that  although  what  the  statute 
refers  to  as  a  "distinctive  name"  may  be  alto 
gether  arbitrary,  it  must  be  one  that  distin 
guishes  the  article;  and  where  a  "distinctive 
name"  is  formed  by  the  uniting  of  several 
names,  each  descriptive  of  a  known  substance 
or  article,  it  amounts  to  a  "mis-branding"  con 
demned  by  law,  if  the  article  sold  does  not 
contain  the  articles  generally  known  individu 
ally  by  any  of  such  names.  The  opinion  said, 
on  this  point: 


116  CHARLES  E.  HUGHES 

We  are  thus  brought  to  the  question  whether 
if  the  names  coca  and  cola  were  respectively 
descriptive,  as  the  Government  contends,  a 
combination  of  the  two  names  constituted  a 
" distinctive  name"  within  the  protection  of  the 
proviso  in  case  either  of  the  described  ingredi 
ents  was  absent.  It  is  said  that  "coca"  indi 
cates  one  article,  and  "cola"  another,  but  that 
the  two  names  together  did  not  constitute  the 
distinctive  name  of  any  other  substance  or  com 
bination  of  substances.  The  contention  leads 
far.  To  take  the  illustration  suggested  in  argu 
ment,  it  would  permit  a  manufacturer,  who 
could  not  use  the  name  chocolate  to  describe 
that  which  was  not  chocolate,  or  vanilla  to  de 
scribe  that  which  was  not  vanilla,  to  designate 
a  mixture  as  "Chocolate-Vanilla,"  although  it 
was  destitute  of  either  or  both,  provided  the 
combined  name  had  not  been  previously  used. 
We  think  that  the  contention  misses  the  point 
of  the  proviso.  A  mixture  or  compound  may 
have  a  name  descriptive  of  its  ingredients  or 
an  arbitrary  name.  The  latter  (if  not  already 
appropriated)  being  arbitrary,  designates  the 
particular  product.  Names,  however,  which 
are  merely  descriptive  of  ingredients  are  not 
primarily  distinctive  names  save  as  they  ap 
propriately  describe  the  compound  with  such 
ingredients.  To  call  the  compound  by  a  name 
descriptive  of  ingredients  which  are  not  pres 
ent  is  not  to  give  it  "its  own  distinctive  name" 
— which  distinguishes  it  from  other  compounds 
— but  to  give  it  the  name  of  a  different  com 
pound.  That,  in  our  judgment,  is  not  protected 
by  the  proviso,  unless  the  name  has  achieved 


FOODS  AND  DRUGS  117 

a  secondary  significance  as  descriptive  of  a 
product  known  to  be  destitute  of  the  ingredi 
ents  indicated  by  its  primary  meaning. 

In  the  present  case  we  are  of  opinion  that 
it  could  not  be  said  as  matter  of  law  that  'the 
name  was  not  primarily  descriptive  of  a  com 
pound  with  coca  and  cola  ingredients,  as 
charged.  Nor  is  there  basis  for  the  conclusion 
that  the  designation  had  attained  a  secondary 
meaning  as  the  name  of  a  compound  from 
which  either  coca  or  cola  ingredients  were 
known  to  be  absent;  the  claimant  has  always 
insisted,  and  now  insists,  that  its  product  con 
tains  both.  But  if  the  name  was  found  to  be 
descriptive,  as  charged,  there  was  clearly  a  con 
flict  of  evidence  with  respect  to  the  .presence  of 
any  coca  ingredient.  We  conclude  that  the 
court  erred  in  directing  a  verdict  on  the  second 
count. 

During  the  past  five  years,  the  Supreme 
Court  has  likewise  given  great  vitality  to  the 
power  of  the  States  to  enact  and  enforce  effec 
tive  regulations  against  impurity  in  foods  and 
drugs  and  the  presence  of  deleterious  sub 
stances  therein.  In  Price  v.  Illinois,1  Mrs.  Price 
had  been  found  guilty,  in  the  Chicago  Municipal 
Court,  of  violating  the  "pure  food"  statute  of 
that  commonwealth.  She  had  sold  in  Chicago  a 
preservative  compound  well  known  to  house 
wives  under  the  name  of  "Mrs.  Price's  Canning 
Compound. "  The  State  authorities  charged, 

*  Price  vs.  Illinois  (238  IT.  S.  Keports,  page  446). 


118  CHARLES  E.  HUGHES 

and  the  State  Courts  had  determined,  that  this 
so-called  "preservative  of  food''  was  "unwhole 
some  and  injurious,  in  that  it  contained  boric 
acid."  Mrs.  Price  promptly  appealed  to  the 
Supreme  Court  of  the  United  States,  and 
Justice  Hughes  wrote  the  opinion  of  the  Court 
in  her  case. 

The  Supreme  Court  of  the  United  States  of 
course  did  not  undertake  to  say  whether  boric 
acid,  which  Mrs.  Price's  "canning  compound" 
concededly  contained,  was  in  fact  "injurious  to 
health  or  to  the  human  system."  These  nine 
men  of  the  law  behind  a  long  bench  down  in  a 
"Washington  court-room  did  not  try  to  decide 
that,  and  the  provisions  of  the  Constitution  as 
to  the  jurisdiction  of  the  Supreme  Court  did  not 
put  that  task  upon  them.  The  Supreme  Court 
said,  as  it  does  in  all  similar  cases,  that  the 
State  authorities,  with  the  aid  of  their  chemists 
and  their  health  experts,  are  entitled  to  form 
their  own  judgment  as  to  that,  and  unless  their 
determination  that  "boric  acid"  is  unhealthful 
appears  under  all  the  evidence  to  be  so  alto 
gether  unreasonable  and  arbitrary  that  the 
trained  minds  of  the  Court  can  discover  no  fair 
or  probable  foundation  for  such  a  conclusion, 
the  Supreme  Court  has  no  right  or  reason  to 
interfere  with  the  action  of  the  State  experts. 
If  the  house-wives  of  Illinois  want  Mrs.  Price's 
"canning  compound"  taken  out  of  the  cate 
gory  of  prohibited  articles,  and  want  to  use  this 
boric  acid  preservative  in  their  fall  canning, 


FOODS  AND  DRUGS  119 

they  should  let  their  views  be  known  to  their 
legislators,  and  vote  accordingly;  the  Supreme 
Court  cannot  interfere.  The  Court,  in  other 
words,  said,  in  substance,  that  it  was  no  answer 
to  the  action  of  the  State  authorities  and  the 
State  Courts  to  say  that  the  injurious  effects  of 
boric  acid  are  debatable,  because  if  the  effects 
are  debatable,  the  legislature  of  Illinois  is  enti 
tled  to  use  its  own  best  judgment,  with  the  aid 
of  the  most  expert  advisers  it  can  obtain,  and 
the  matter  rests  with  the  people  of  Illinois,  not 
a  Court  in  Washington. 

Justice  Hughes  wrote,  in  part,  as  follows,  in 
the  Price  case: 


The  State  has  undoubted  power  to  protect 
the  health  of  its  people  and  to  impose  restric 
tions  having  reasonable  relation  to  that  end. 
The  nature  and  extent  of  restrictions  of  this 
character  are  matters  for  the  legislative  judg 
ment  in  defining  the  policy  of  the  State  and 
the  safeguards  required.  In  the  avowed  exer 
cise  of  this  power,  the  legislature  of  Illinois  has 
enacted  a  prohibition — as  the  statute  is  con 
strued — against  the  sale  of  food  preservatives 
containing  boric  acid.  And  unless  this  prohibi 
tion  is  palpably  unreasonable  and  arbitrary  we 
are  not  at  liberty  to  say  that  it  passes  beyond 
the  limits  of  the  State's  protective  author- 
ity 

The  contention  of  the  plaintiff  in  error  could 
.be  granted  only  if  it  appeared  that  by  a  con 
sensus  of  opinion  the  preservative  was  unques- 


120  CHARLES  E.  HUGHES 

tionably  harmless  with  respect  to  its  contem 
plated  uses,  that  is,  that  it  indubitably  must  be 
classed  as  a  wholesale  article  of  commerce  so 
innocuous  in  its  designed  use  and  so  unrelated 
in  any  way  to  any  possible  danger  to  the  public 
health  that  the  enactment  must  be  considered 
as  a  merely  arbitrary  interference  with  the 
property  and  liberty  of  the  citizen.  It  is  plainly 
not  enough  that  the  subject  should  be  regarded 
as  debatable.  If  it  be  debatable,  the  legislature 
is  entitled  to  its  own  judgment,  and  that  judg 
ment  is  not  to  be  superseded  by  the  verdict  of 
a  jury  upon  the  issue  which  the  legislature  has 
decided.  It  is  not  a  case  where  the  legislature 
has  confined  its  action  to  the  prohibition  of  that 
which  is  described  in  general  terms  as  unwhole 
some  or  injurious,  leaving  the  issue  to  be  de 
termined  in  each  case  as  it  arises.  The  legis 
lature  is  not  bound  to  content  itself  with  gen 
eral  directions  when  it  considers  that  more  de 
tailed  measures  are  necessary  to  attain  a  legiti 
mate  object.  Legislative  particularisation  in 
the  exercise  of  protective  power  has  many 
familiar  illustrations.  The  present  case  is  one 
of  such  particularisation,  where  the  statute — 
read  as  the  State  Court  reads  it — specially  pro 
hibits  preservatives  containing  boric  acid.  The 
legislature  thus  expressed  its  judgment  and  it  is 
sufficient  to  say,  without  passing  upon  the 
opinions  of  others  adduced  in  argument,  that 
the  action  of  the  legislature  cannot  be  consid 
ered  to  be  arbitrary.  Its  judgment  appears  to 
have  sufficient  support  to  be  taken  out  of  that 
category.  See  Hipolite  Egg  Co.  v.  United 
States,  220  U.  S.  45,  51;  Circular  No.  15  (June 


FOODS  AND  DRUGS  121 

23,  1904),  Bureau  of  Chemistry,  Food  Inspec 
tion  Decision  76  (July  13,  1907) ;  Bulletin 
(December  31,  1914),  Bureau  of  Chemistry; — 
IT.  S.  Department  of  Agriculture.  .  .  . 

It  is  further  urged  that  the  enactment,  as 
construed,  contains  an  unconstitutional  dis 
crimination  against  the  plaintiff  in  error,  but  in 
this  aspect,  again,  the  question  is  whether  the 
classification  made  by  the  legislature  can  be 
said  to  be  without  any  reasonable  basis.  The 
legislature  is  entitled  to  estimate  degrees  of  evil 
and  to  adjust  its  legislation  according  to  the 
exigency  found  to  exist.  And,  applying  fa 
miliar  principle,  it  cannot  be  said  that  the  legis 
lature  exceeded  the  bounds  of  reasonable  dis 
cretion  in  classification  when  it  enacted  the  pro 
hibition  in  question  relating  to  foods  and  com 
pounds  sold  as  food  preservatives. 

In  several  other  opinions  of  notable  fidelity 
to  the  actual  conditions  under  which  adminis 
trative  problems  of  State  regulation  are  en 
countered,  Justice  Hughes  strongly  sustained 
the  State  power.  In  Savage  against  Jones,1  the 
Court  was  asked  to  condemn  an  Indiana  statute 
which  regulated  in  certain  respects,  the  sale 
of  what  is  known  as  '  '  concentrated  commercial 
food"  for  live-stock,  and  required  disclosure  of 
the  ingredients  and  the  minimum  percentage  of 
fats  and  proteins  therein,  disclosure  of  the  for 
mula  of  their  combination  not  being  required. 
Justice  Hughes  held,  for  a  unanimous  Court, 

1 225  U.  S.  Reports,  page  501. 


122  CHARLES  E.  HUGHES 

that  in  view  of  the  conditions  under  which  these 
prepared  foods  for  live-stock  are  sold  and  used 
and  the  importance  to  scientific  and  successful 
dairying  that  the  ingredients  of  these  concen 
trated  foods  should  be  known,  the  statute  must 
be  regarded  as  within  the  limits  of  what  the 
State  might  reasonably  do,  along  the  lines  of 
police  regulation  for  the  suitable  protection  of 
the  best  interests  of  its  farmers.  He  said  that 
"commerce  among  the  States  is  not  a  technical 
legal  conception,  but  a  practical  one,  drawn 
from  the  course  of  business ";  and  that  a  State 
enactment  of  this  kind  could  not  be  regarded 
as  an  interference  with  or  a  burden  upon  inter 
state  commerce,  even  as  to  a  vendor  of  these 
stock  foods  who  lived  in  another  State  and 
shipped  them  into  Indiana  for  sale.  He  like 
wise  held  that  as  long  as  the  Federal  Food  and 
Drugs  Act  does  not  require  disclosure  of  the 
ingredients  of  any  compounds,  the  field  in  that 
respect  is  left  open  to  the  discretion  of  the 
State  authorities.  Later  in  the  same  month, 
Justice  Hughes  wrote  for  the  Court  in  the  case 
of  Standard  Stock  Food  Company  against 
Wright,1  and  upheld  the  constitutionality  of  a 
similar  statute  passed  by  the  Iowa  Legislature. 

In  Purity  Extract  Company  against  Lynch,2 
decided  in  December  of  1912,  the  Supreme 
Court  passed  upon  a  number  of  questions 

*225  U.  S.  Reports,  page  540. 
a22(J  U.  S.  Reports,  page  192. 


FOODS  AND  DRUGS  123 

closely  related  to  those  already  considered  un 
der  this  chapter,  and  also  having  a  bearing 
upon  the  scope  of  the  regulative  power  of  the 
State  to  make  effective  its  duly  determined 
policy  as  to  the  sale  and  use  of  intoxicating 
liquors.  The  plaintiff  in  the  action  was  the 
manufacturer  of  a  beverage  known  as  "Poin- 
setta,"  which  contained  5.73%  of  malt  and  con- 
cededly  was  not  intoxicating.  The  United 
States  Government  did  not  class  "Poinsetta" 
as  an  intoxicating  liquor,  and  the  beverage  was 
bottled  in  such  a  way  that  concededly  it  could 
not  be  used  "as  a  subterfuge  for  the  sale  of 
beer."  The  defendant  was  to  have  had  the 
exclusive  agency  for  the  beverage  in  one  of  the 
Mississippi  counties,  and  was  to  pay  an  agreed 
price  for  the  agency.  When  he  went  into  the 
State,  he  found  that  the  legislature,  in  pur 
suance  of  the  "prohibition"  policy  of  the  com 
monwealth,  had  enacted  a  law  prohibiting  the 
sale  of  all  malt  liquors,  whether  intoxicating  in 
fact  or  not,  and  the  Supreme  Court  of  the  State 
had  specifically  held  that  this  statute  prohibited 
the  sale  of  "Poinsetta"  within  the  State,  be 
cause  one  of  its  ingredients  was  malt.  The  de 
fendant  then  refused  to  take  the  agency  or  pay 
the  price ;  the  company  sued  him  for  the  money ; 
the  State  Court  said  he  need  not  pay  it  because 
the  contract  called  for  the  doing  of  a  thing 
illegal  in  the  State ;  and  the  company  asked  the 
Supreme  Court  of  the  United  States  to  rule 
that  the  State  had  no  right  to  exclude  "Poin- 


124  CHARLES  E.  HUGHES 

setta"  from  the  channels  of  interstate  com 
merce  and  no  right  to  vitiate  an  otherwise  valid 
contract  merely  because  it  related  to  transac 
tions  for  the  sale  of  a  non-intoxicating  malt 
liquor. 

On  the  question  whether  the  prohibition  law 
ofjthe  Sta^e  could  be  made  applicable  to  a  malt 
beverage  not  intoxicating  and  a  prohibition 
consequently  placed  on  the  sale  of  a  beverage 
such  as  "Poinsetta,"  Justice  Hughes  said: 

That  the  State  in  the  exercise  of  its  police 
power  may  prohibit  the  selling  of  intoxicating 
liquors  is  undoubted.  It  is  also  well  established 
that,  when  a  State  exercising  its  recognised 
authority  undertakes  to  suppress  what  it  is  free 
to  regard  as  a  public  evil,  it  may  adopt  such 
measures  having  reasonable  relation  to  that  end 
as  it  may  deem  necessary  in  order  to  make  its 
action  effective.  It  does  not  follow  that  be 
cause  a  transaction  separately  considered  is 
innocuous  it  may  not  be  included  in  a  prohibi 
tion  the  scope  of  which  is  regarded  as  essential 
in  the  legislative  judgment  to  accomplish  a 
purpose  within  the  admitted  power  of  the  Gov 
ernment.  .  .  .  With  the  wisdom  of  the  exercise 
of  that  judgment  the  court  has  no  concern; 
and  unless  it  clearly  appears  that  the  enactment 
has  no  substantial  relation  to  a  proper  purpose, 
it  cannot  be  said  that  the  limit  of  legislative 
power  has  been  transcended.  To  hold  other 
wise  would  be  to  substitute  judicial  opinion  of 
expediency  for  the  will  of  the  legislature,  a 
notion  foreign  to  our  constitutional  system.  .  .  . 


FOODS  AND  DEUGS  125 

It  was  competent  for  the  legislature  of  Mis 
sissippi  to  recognise  the  difficulties  besetting  the 
administration  of  laws  aimed  at  the  prevention 
of  traffic  in  intoxicants.  It  prohibited,  among 
other  things,  the  sale  of  "Malt  liquors/'  In 
thus  dealing  with  a  class  of  beverages  which  in 
general  are  regarded  as  intoxicating,  it  was  not 
bound  to  resort  to  a  discrimination  with  respect 
to  ingredients  and  processes  of  manufacture 
which,  in  the  endeavour  to  eliminate  innocuous 
beverages  from  the  condemnation,  would  facili 
tate  subterfuges  and  frauds  and  fetter  the  en 
forcement  of  the  law.  A  contrary  conclusion 
logically  pressed  would  save  the  nominal  power 
while  preventing  its  effective  exercise.  The 
statute  establishes  its  own  category.  The  ques 
tion  in  this  court' is  whether  the  legislature  had 
power  to  establish  it.  The  existence  of  this 
power,  as  the  authorities  we  have  cited  abun 
dantly  demonstrate,  is  not  to  be  denied  simply 
because  some  innocent  articles  of  transactions 
may  be  found  within  the  prescribed  class.  The 
inquiry  must  be  whether,  considering  the  end 
in  view,  the  statute  passes  the  bounds  of  reason 
and  assumes  the  character  of  a  merely  arbi 
trary  fiat. 

That  the  opinion  is  extensively  held  that  a 
general  prohibition  of  the  sale  of  malt  liquors, 
whether  intoxicating  or  not,  is  a  necessary 
means  to  the  suppression  of  trade  in  intoxi 
cants,  sufficiently  appears  from  the  legislation 
of  other  States  and  the  decision  of  the  courts 
in  its  construction.  .  .  .  We  cannot  say  that 
there  is  no  basis  for  this  widespread  conviction. 

The  State,  within  the  limits  we  have  stated, 


126  CHARLES  E.  HUGHES 

must  decide  upon  the  measures  that  are  need 
ful  for  the  protection  of  its  people,  and,  having 
regard  to  the  artifices  which  are  used  to  pro 
mote  the  sale  of  intoxicants  under  the  guise  of 
innocent  beverages,  it  would  constitute  an  un 
warrantable  departure  from  accepted  principle 
to  hold  that  the  prohibition  of  the  sale  of  all 
malt  liquors,  including  the  beverage  in  ques 
tion,  was  beyond  its  reserved  power. 


CHAPTER   V 

THE  EIGHT-HOUE  WOKK-DAY  AND  COMPENSATION 
FOK  OCCUPATIONAL  DISABILITIES  THKOUGH 
TKADE  KISKS. 

"THE  length  of  hours  of  service  has  direct 
relation  to  the  efficiency  of  the  human  agencies 
upon  which  protection  to  life  and  property  nec 
essarily  depends,"  was  an  expression  of  the 
economic  and  legal  doctrine  held  by  Justice 
Hughes  in  Baltimore  &  Ohio  Railroad  Company 
against  the  Interstate  Commerce  Commission.1 
He  added  that  "in  imposing  restrictions  having 
reasonable  relation  to  this  end  there  is  no  inter 
ference  with  liberty  of  contract  as  guaranteed 
by  the  Constitution. ' '  In  the  so-called  '  '  Oregon 
hours  of  labour"  case,2  decided  before  Justice 
Hughes  became  a  member  of  the  Supreme 
Court,  that  tribunal  had  upheld  an  Oregon 
statute,  which  reduced  the  maximum  hours  of 
labour  for  women  in  industrial  establishments 
to  ten  hours  per  day.  In  the  so-called  "Ohio 
hours  of  labour"  case,3  he  joined  with  his  col 
leagues  in  unanimously  sustaining  the  Ohio 
statute  which  limited  the  hours  of  labour  of 

1 221  U.  S.  Eeports,  page  612. 

*Muller  vs.  Oregon  (208  U.  S.  Eeports,  page  412). 

*Hawley  vs.  Walker  (232  U.  S.  Eeports,  page  718). 

127 


128  CHAELES  E.  HUGHES 

women  in  certain  industrial  establishments  to 
fifty-four  hours  in  any  one  week.  In  Miller 
against  Wilson,1  Justice  Hughes  wrote  the 
opinion  of  the  Supreme  Court,  in  which  he  held 
that  while  a  limitation  of  the  hours  of  women 
" might  be  pushed  to  a  wholly  indefensible  ex 
treme/'  there  was  no  reason  for  the  conclusion 
"that  the  limit  of  the  reasonable  exertion  of 
protective  authority  has  been  overstepped "  in 
a  California  statute  which  prescribed  for  em 
ployed  women  a  maximum  work-day  of  eight 
hours  and  a  maximum  work- week  of  forty-eight 
hours. 

In  the  Baltimore  <&  Ohio  case  above  referred 
to,  where  a  limitation  of  the  hours  of  labour  of 
railroad  employes  was  under  attack,  Justice 
Hughes  said,  for  a  unanimous  Court: 

The  fundamental  question  here  is  whether  a 
restriction  upon  the  hours  of  labour  of  em 
ployes  who  are  connected  with  the  movement 
of  trains  in  interstate  transportation  is  com 
prehended  within  this  sphere  of  authorised  leg 
islation.  This  question  admits  of  but  one  an 
swer.  The  length  of  hours  of  service  has  direct 
relation  to  the  efficiency  of  the  human  agencies 
upon  which  protection  to  life  and  property  nec 
essarily  depends.  This  has  been  repeatedly  em 
phasised  in  official  reports  of  the  Interstate 
Commerce  Commission,  and  is  a  matter  so  plain 
as  to  require  no  elaboration.  In  its  power 
suitably  to  provide  for  the  safety  of  employes 

X236  U.  S.   Reports,  page  373. 


THE  EIGHT-HOUR  WORK-DAY    129 

and  travellers,  Congress  was  not  limited  to  the 
enactment  of  laws  relating  to  mechanical  ap 
pliances,  but  it  was  also  competent  to  consider, 
and  to  endeavour  to  reduce,  the  dangers  inci 
dent  to  the  strain  of  excessive  hours  of  duty  on 
the  part  of  engineers,  conductors,  train  des- 
patchers,  telegraphers,  and  other  persons  em 
braced  within  the  class  defined  by  the  act. 
And  in  imposing  restrictions  having  reasonable 
relation  to  this  end  there  is  no  interference  with 
liberty  of  contract  as  guaranteed  by  the  Con 
stitution.  If  then  it  be  assumed,  as  it  must 
be,  that  in  the  furtherance  of  its  purpose  Con 
gress  can  limit  the  hours  of  labour  of  employes 
engaged  in  interstate  transportation,  it  follows 
that  this  power  cannot  be  defeated  either  by 
prolonging  the  period  of  service  through  other 
requirements  of  the  carriers  or  by  the  com 
mingling  of  duties  relating  to  interstate  and 
intrastate  operations.  .  .  . 

Finding  that  the  objections  to  the  validity  of 
the  statute  are  not  well  taken,  we  are  brought 
to  the  question  whether  the  Interstate  Com 
merce  Commission  has  authority  to  require  the 
reports  called  for  by  its  order.  Section  4  of 
the  act  provides :  "  SEC.  4.  It  shall  be  the  duty 
of  the  Interstate  Commerce  Commission  to 
execute  and  enforce  the  provisions  of  this  act, 
and  all  powers  granted  to  the  Interstate  Com 
merce  Commission  are  hereby  extended  to  it  in 
the  execution  of  this  act." 

The  Commission  then  may  call  to  its  aid  in 
the  enforcement  of  the  act  "all  powers  grant 
ed"  to  it.  And,  although  there  might  have 
been  doubt  as  to  the  adequacy  of  the  authority 


130  CHAELES  E.  HUGHES 

of  the  Commission,  under  the  law  as  it  formerly 
stood,  to  require  these  reports,  there  can  be 
none  now  in  view  of  the  amendment  of  §  20  of 
the  act  to  regulate  commerce  by  the  act  of  June 
18,  1910.  .  .  . 

To  enable  the  Commission  properly  to  per 
form  its  duty  to  enforce  the  law,  it  is  necessary 
that  it  should  have  full  information  as  to  the 
hours  of  service  exacted  of  the  employes  who 
are  subject  to  the  provisions  of  the  statute,  and 
the  requirements  to  which  we  have  referred  are 
appropriate  for  that  purpose  and  are  compre 
hended  within  the  power  of  the  Commission. 

There  is  the  final  objection  that  to  compel  the 
disclosure  by  these  reports  of  violations  of  the 
law  is  contrary  to  the  Fourth  and  Fifth 
Amendments  of  the  Constitution  of  the  United 
States.  The  order  of  the  Commission  is  suit 
ably  specific  and  reasonable,  and  there  is  not 
the  faintest  semblance  of  an  unreasonable 
search  and  seizure.  The  Fourth  Amendment 
has  no  application. 

Justice  Hughes  likewise  joined  in  the  opinion 
of  Justice  Holmes  in  Missouri,  K.  &  T.  Railway 
Company  against  the  United  States*  in  which 
the  latter  said  that  "as  towards  the  public 
every  overworked  man  presents  a  distinct  dan 
ger,"  and  he  joined  in  Justice  Harlan's  holding 
in  Chicago,  R.  I.  &  P.  Railway  Company  against 
Arkansas  2  that  the  "full  crew  law"  was  not  an 
obstruction  to  or  burden  upon  interstate  com- 

»231  U.  S.  Reports,  page  118. 
'  219  U.  S.  Reports,  page  453. 


THE  EIGHT-HOUR  WORK-DAY    131 

merce,  but  an  aid  thereto,  fully  within  the  regu 
lative  power  of  the  State. 

In  Sturges  &  Burn  against  Beauchamp^  Jus 
tice  Hughes  was  called  upon  to  write  the  opin 
ion  of  the  Court  as  to  the  Illinois  statute  pro 
hibiting  the  employment  of  children  under 
sixteen  years  of  age  in  industrial  employments. 
Said  his  opinion: 

It  cannot  be  doubted  that  the  State  was  en 
titled  to  prohibit  the  employment  of  persons  of 
tender  years  in  dangerous  occupations.  ...  It 
is  urged  that  the  plaintiff  in  error  was  not  per 
mitted  to  defend  upon  the  ground  that  it  acted 
in  good  faith  relying  upon  the  representation 
made  by  Beauchamp  that  he  was  over  sixteen. 
It  is  said  that,  being  over  fourteen,  he  at  least 
had  attained  the  age  at  which  he  should  have 
been  treated  as  responsible  for  his  statements. 
But,  as  it  was  competent  for  the  State  in  secur 
ing  the  safety  of  the  young  to  prohibit  such  em 
ployment  altogether,  it  could  select  means  ap 
propriate  to  make  its  prohibition  effective  and 
could  compel  employers,  at  their  peril,  to  ascer 
tain  whether  those  they  employed  were  in  fact 
under  the  age  specified.  The  imposition  of 
absolute  requirements  of  this  sort  is  a  familiar 
exercise  of  the  protective  power  of  government. 
.  .  .  And  where,  as  here,  such  legislation  has 
reasonable  relation  to  a  purpose  which  the 
State  was  entitled  to  effect,  it  is  not  open  to 
constitutional  objection  as  a  deprivation  of  lib 
erty  or  property  without  due  process  of  law. 

'SSI   U,   S,   Reports,   page   320, 


132  CHARLES  E.  HUGHES 

As  Governor  of  New  York,  Mr.  Hughes  had 
been  a  pioneer  in  constructive  steps  for  the 
development  of  an  adequate  and  scientific  sys 
tem  of  compensation  to  injured  employes  for 
those  disabilities  which  are  a  natural  risk  and 
concomitant  of  industry.  As  far  back  as  1909, 
two  years  before  the  enactment  of  the  Wiscon 
sin  workmen's  compensation  law,  Governor 
Hughes  had  sent  to  the  New  York  Legislature 
the  following  recommendation,  upon  which  the 
Legislature  acted  in  authorising  the  creation 
of  the  so-called  Wainwright  Commission: 

I  recommend  that  provision  be  made  for  spe 
cial  and  expert  inquiry  into  the  questions  re 
lating  to  employers '  liability  and  compensation 
for  workmen's  injuries.  Our  present  methods 
are  wasteful  and  result  in  injustice.  Numbers 
of  negligence  cases  are  prosecuted  upon  a  basis 
which  gives  the  attorney  a  high  percentage  of 
recoveries.  Only  a  small  percentage  of  the  pre 
miums  paid  for  insurance  against  liability  is 
devoted  to  payment  of  losses.  As  a  result  the 
workmen  do  not  receive  proper  compensation 
and  employers  pay  large  amounts  that  do  not 
reach  them.  There  are  constitutional  restric 
tions  which  stand  in  the  way  of  some  of  the 
remedies  which  have  been  devised  in  other  coun 
tries;  but  the  subject  should  be  thoroughly  ex 
amined  to  the  end  that  the  present  waste  and 
injustice  should  be  mitigated  to  the  fullest  ex 
tent  that  may  be  found  to  be  at  once  practicable 
and  consistent  with  the  provisions  of  our  funda 
mental  law. 


THE  EIGHT-HOUR  WORK-DAY    133 

Upon  the  recommendation  of  the  "Wainwright 
Commission,  the  Legislature  passed  a  work 
men's  compensation  law  which  was  a  pioneer  of 
its  kind  and  performed  a  valuable  experimental 
service  in  clarifying  the  fundamental  law  as 
to  the  policy  and  scope  of  legislation  in  this 
field.  In  approving  the  Wainwright  bill,  which 
was  afterwards  held  unconstitutional  by  the 
New  York  Court  of  Appeals  in  the  well-known 
Ives  case,1  thereby  clearing  the  way  for  a 
needed  amendment  of  the  State  Constitution 
and  the  passage  of  a  more  comprehensive  and 
admirable  Compensation  Act,  Governor  Hughes 
said: 

Existing  conditions  with  regard  to  employ 
ers'  liability  and  compensation  for  workmen's 
injuries  are  so  unjust  that  there  should  be  re 
medial  action.  .  .  .  The  present  methods  are 
satisfactory  neither  to  employer  nor  employed 
and  the  rules  of  law  governing  legal  liability 
offend  the  commonsense  of  fairness.  The  im 
portance  of  providing  a  suitable  scheme  of  com 
pensation  for  industrial  acidents  and  of  avoid-* 
ing  the  shocking  waste  of  injustice  of  our  pres 
ent  methods  must  be  conceded  by  all  open- 
minded  students  of  industrial  conditions.  It  is 
difficult  to  devise  any  method  of  compensation 
which  will  not  be  visited  with  severe  criticism 
and  a  satisfactory  solution  of  the  problem  can 
only  be  reached  by  experimentation. 

1Ivea  vs.  South  Buffalo  By.  Co.   (201  N.  Y.  Reports,  page 
271), 


134  CHAELES  E.  HUGHES 

In  the  field  of  indemnity  or  recovery  for  in 
dustrial  accidents,  Justice  Hughes'  opinions  in 
the  Supreme  Court  manifest  a  broad  and  sym 
pathetic  outlook  upon  the  activities  of  the  State 
legislatures.     In   Chicago,  B.   &   Q.   Railway 
Company    against    McGuire*    argued    a    few 
months  after  Justice  Hughes  went  upon  the 
bench,  he  held  that  the  Iowa  Legislature  had 
the  right  to  prohibit  contracts  between  railway 
companies  and  their  employes  limiting  the  lat 
ter  's  right  to  recover  damages  at  common  law 
for  injuries  in  the  course  of  employment,  and 
that  this  prohibition  might  be  made  effective 
against  even  a  so-called  " relief  plan,"  to  which 
both  the  company  and  the  employes  contrib 
uted,  and  which  was  by  its  terms  supposed  to 
bar  and  be  in  substitution  for  any  recovery  by 
the  employe  through  action  at  law.    To  a  very 
similar  effect  was  his  ruling  in  Philadelphia, 
B.  &  W.  Railway  Company  against  Schubert,2 
where  the  prohibition  against  exemptions  from 
Jiability  was  contained  in  the  Federal  Employ 
ers'  Liability  Act  of  1908.    He  joined  repeat 
edly  in  upholding  the  constitutionality  of  State 
statutes 3  abrogating  or  modifying  the  "fellow- 

1  219  U.  S.  Eeports,  page  549. 

a224  U.  S.  Eeports,  page  603. 

8  Mobile,  etc.,  E.  E.  Co.  vs.  Turnipseed  (219  U.  S.  35),  up 
holding  the  Mississippi  statute  in  1910;  Chicago,  B.  $•  I.  K.  It. 
Co.  vs.  McGuire  (219  U.  S.  549),  upholding  the  Iowa  statute 
in  1911;  and  Aluminum  Co.  vs.  Eamsey  (222  U.  S.  251),  up 
holding  the  Arkansas  statute  in  1911. 


THE  EIGHT-HOUR  WORK-DAY    135 

servant  doctrine" — the  outgrown  concept  that 
an  injured  employe  was  barred  of  recovery  if 
the  accident  was  due  to  the  fault  of  a  fellow 
employe. 


CHAPTER  VI 

"THE  PAPER-BOX  FACTORY  GIRL  AND  THE 
CONSTITUTION" 

THE  greatest  Court  in  the  world  is  a  very 
human  institution.  It  deals  with  palpitating 
human  issues  in  a  very  direct,  common-sense, 
human  way,  and  it  knows  it  is  dealing  with 
them — dealing  with  them  finally,  at  least  so  far 
as  the  rights  and  happiness  of  the  human  beings 
before  the  Court  in  the  particular  case  are  con 
cerned.  Those  who  think  of  the  Supreme  Court 
as  an  impersonal  aggregation  of  men  with  me 
chanical  minds,  leading  a  cloistered  life  and  in 
different  to  the  happenings  and  welfare  of  a 
workaday  world,  have  never  sat  in  that  court 
room  and  watched  the  way  in  which  these  nine 
black-robed  men  address  themselves  to  the  hu 
man  as  well  as  the  legal  phases  of  the  cases 
argued  before  them,  after  they  have  come  across 
the  Capitol  corridors  at  noon  in  impressive  file, 
between  ropes  of  red  plush  temporarily  ex 
tended  from  their  robing-rooms  to  give  them 
avenue.  The  members  of  this  Court  realise 
what  governments,  Constitutions,  laws,  deci 
sions,  precedents,  courts,  law-suits,  appeals,  ar 
guments,  are  all  about  and  what  in  the  final 

136 


' <THE  PAPEE-BOX  FACTORY  GIRL"  137 

analysis  these  man-created  instrumentalities 
are  and  should  serve,  and  they  appear  to 
work  decidedly  hard  to  keep  all  these  instru 
mentalities  in  accord  and  in  service  for  the  ulti 
mate  welfare  of  the  men  and  women  who  make 
up,  and  in  the  years  to  come  will  make  up,  the 
Nation. 

In  the  Survey  magazine,1  Miss  Mary  Cham 
berlain  once  wrote  down  very  vividly  her  im 
pressions  of  the  direct  and  open-minded  way  in 
which  the  Supreme  Court  hears  argument  on 
vital  issues  of  human  rights  and  "  keeps  its 
eyes  on  the  main  issue": 

"OYEZ,  OYEZ,  OYEZ  .  .  .  God  save  the  United 
States  and  this  honourable  court,"  chants  the 
marshal  of  the  highest  tribunal  in  America  as 
the  black-robed  justices  file  to  their  places. 

"Save,  also,"  he  might  add,  "the  nine  million 
working  women  who  to-day  are  pleading  for 
health  and  energy,  for  some  joyousness  in  liv 
ing  and  for  the  welfare  of  their  children." 

For  this  afternoon,  December  17,  1914,  the 
first  case  involving  the  constitutionality  of  a 
law  to  provide  minimum  wages  for  women  in 
industry  and  upheld  by  unanimous  bench  in  the 
Supreme  Court  of  Oregon  is  come  to  trial 
before  the  Supreme  Court  of  the  United  States. 
On  the  court's  decision  will  probably  depend 

1  Issue   of  December   26,   1914.     "The  Paper-Box   Factory 
Girl  and  the  Constitution,"  by  Miss  Mary  Chamberlain. 


138  CHAELES  E.  HUGHES 

the  status  of  similar  laws  in  California,  Colo 
rado,  Minnesota,  Utah,  Washington  and  Wis- 
consin.  It  will  constitute,  furthermore,  an  im 
petus  or  a  blockage  to  the  present  investigations 
of  living  conditions  in  the  States  where  wage 
legislation  is  contemplated. 

The  decision  to  be  rendered,  therefore,  in  the 
cases  of  Frank  C.  Stettler,  a  box  manufacturer, 
of  Portland,  Ore.,  and  Elmira  Simpson,  a  girl 
employed  in  the  Stettler  factory,  vs.  the  Indus 
trial  Welfare  Commission  of  Oregon  l  involves 
more  than  the  right  of  a  single  manufacturer  to 
bargain  for  labour  at  six  and  seven  dollars  a 
week  and  more  than  the  right  of  a  single  woman 
to  scrimp  through  life  on  an  eight-dollar  wage. 
The  judgment  handed  down  may  prove  an  index 
to  the  attitude  of  our  final  judiciary  toward  a 
broader  extension  of  the  police  power  of  the 
State  in  the  field  of  economic  relations. 

The  scene  in  the  semi-circular  court-room  has 
a  touch  of  irony,  almost  of  the  dramatic; — the 
quiet,  stately  room  so  far  from  the  whir  of 
machines  and  the  rush  of  Christmas  shopping; 
the  formality  of  the  proceedings ;  the  inscruta 
ble  faces  of  the  eight  judges;  the  attempt  of 
.  .  .  counsel  for  the  plaintiffs,  to  prove  the 
collapse  of  constitutional  government  by  the 
payment  of  sixty-four  cents  more  a  week  to  a 
factory  girl  in  Portland ;  and  finally  the  earnest 
appeal  of  Louis  D.  Brandeis  and  Attorney  Gen 
eral  Crawford  of  Oregon,  representing  the  de 
fendants,  to  judge  not  hypothetical  bogies,  but 

1  No  decision  of  the  Supreme  Court  in  this  case  had  been 
handed  down,  up  to  the  time  of  Justice  Hughes'  resignation 
from  the  bench. 


"THE  PAPEE-BOX  FACTORY  GIRL"  139 

the  very  real  terrors  of  starvation,  thin  cloth 
ing  arid  temptation. 

The  plaintiffs  rest  their  case  upon  the  same 
familiar  premise — the  premise  of  freedom  of 
contract  guaranteed  by  the  Fourteenth  Amend 
ment  to  the  Constitution.  This  arbitrary  regu 
lation  of  wages,  regardless  both  of  the  em 
ployes  '  efficiency  or  other  sources  of  income  and 
of  the  employers'  ability  to  pay  the  rate,  is 
claimed  to  be  a  deprivation  of  liberty  and  of 
property  (since  labour  is  a  commodity)  without 
due  process  of  law.  Furthermore,  it  is  branded 
discriminatory,  on  the  one  hand,  against  the  em 
ployers  of  Oregon  who  must  compete  with 
manufacturers  in  Washington  and  neighbour 
ing  States ;  on  the  other  hand,  against  employes 
as  women. 

In  judging  the  case  the  Supreme  Court  of 
Oregon  held  that  regulation  of  wages  by  a 
minimum  wage  law  was  a  proper  exercise  of  the 
police  power  of  the  State  whereby  "freedom" 
is  subject  to  such  restraint  of  action  as  the  State 
may  impose  for  protection  of  health,  safety, 
morals,  and  general  welfare.  But  Mr.  Brown 
contends  that  a  i  l  fair,  reasonable,  necessary  ex 
ercise  of  police  power"  has  never  been  and 
may  not  be  invoked  to  supply  an  individual's 
needs  which  are  merely  incidental  to  employ 
ment  and  do  not,  like  the  hazards  of  long  hours 
and  accidents,  arise  out  of  an  occupation.  It 
is  difficult  to  follow  from  the  argument  which 
he  advances  how  an  individual's  private  life, 
her  unmet  needs  of  food  and  shoes  and  recrea 
tion,  has  no  connection  with  the  six  or  eight 
dollar  wage  paid  for  her  industrial  life. 


140  CHAELES  E.  HUGHES 

To  take  from  those  who  have,  simply  because 
they  have,  and  give  to  those  who  have  not, 
simply  because  they  have  not,  warns  counsel, 
opens  a  realm  of  police  power  regulation  which 
has  no  limit,  one  which  will  lead  to  compulsory 
division  of  profit  and  thence  to  a  division  of 
property.  It  may  be,  he  admits,  ethically  right 
and  even  economically  sound,  but  it  is  impos 
sible  under  our  present  form  of  government. 
It  strains  all  police  power  and  "  jumps  over  a 
chasm  into  a  field  repugnant  to  a  Constitution 
which  holds  sacred  the  rights  of  property " — 
the  similes  of  his  conclusion  are  jumbled  but 
they  express  to  Mr.  Brown's  mind  the  vague, 
nameless  terrors  which  menace  a  government 
where  a  minimum  wage  is  law. 

The  spectator  unconsciously  tries  to  sense 
the  attitude  of  the  court  from  the  queries  which 
the  judges  make.  Is  Mr.  Justice  Pitney  adverse 
when  he  questions  the  granting  of  a  fixed  wage 
without  reference  to  efficiency  or  Mr.  Chief  Jus 
tice  White  when  he  asks  if  such  a  regulation 
would  not  drive  some  employers  out  of  busi 
ness?  May  the  defence  expect  agreement  from 
Mr.  Justice  McKenna  who  appears  to  take  issue 
when  Mr.  Brown  declares  there  is  no  "  reason 
ableness  "  in  the  Oregon  statute?  Or  from  Mr. 
Justice  Holmes  when  he  cites  the  degeneracy  of 
the  working  classes  in  England  before  the  fac 
tory  acts  curbed  absolute  "freedom  of  con 
tract"?  Or  are  these  questions  and  comments 
merely  the  expression  of  alert  and  open  minds 
desirous  of  examining  the  subject  from  its 
every  angle? 

"Never,"  declares  a  frequent  visitor  to  the 


i  <  THE  PAPER-BOX  FACTORY  GIRL  ' '  141 

court,  "have  I  seen  the  judges  more  obviously 
interested  in  a  case." 

But  whether  we  count  them  favourable  or  ad 
verse,  one  question  remains  unanswered  by  the 
plaintiffs  which  must  be  answered  by  the  court. 

Ex-Senator  Fulton  is  summing  up  the  case  of 
the  plaintiffs.  Mr.  Justice  Hughes,  silent  until 
now,  leans  forward. 

"Do  you  base  your  argument  on  the  theory 
of  freedom  of  contract  V '  he  asks. 

"Yes,"  answers  the  counsel. 

i  i  Then, ' '  continues  Justice  Hughes, ' '  is  there 
not  a  precedent  in  the  Ohio  case  1  in  which  this 
court  held  constitutional  the  54-hour  for  women 
in  industry?" 

"No,"  objects  Mr.  Fulton,  "there  is  a  dif 
ference  between  hours  and  wages." 

"What  is  it?" 

"Long  hours,"  he  repeats,  "break  down 
women  so  that  they  become  public  charges,  it 
is  a  condition  growing  out  of  employment.  The 
amount  of  wages  has  no  relation  to  health  and 
morals. ' ' 

"But,"  contends  Justice  Hughes,  "suppose 
it  has,  suppose  this  court  finds  that  these  evils 
are  in  consequence  of  wages  paid  in  employ 
ment?" 

And  it  is  upon  this  question  that  the  defend 
ants,  the  Industrial  Welfare  Commission,  sub 
mit  most  telling  evidence. 

Their  defence  is  not  based  on  contemplation 
of  a  nation  shattered  by  the  payment  of  mini 
mum  wage,  but  on  a  condition  of  industry  which 
actually  exists  when  wages  are  paid  women  "in- 

*Hawley  vs.  Walker  (232  U.  S.  Reports,  page  718). 


142  CHAELES  E.  HUGHES 

adequate  to  supply  the  necessary  cost  of  living 
and  to  maintain  them  in  health." 

Mr.  Brandeis  does  not  present  to  the  court 
speculation,  but  facts,  human  documents  col 
lected  in  a  brief  which  was  prepared  in  co 
operation  with  Josephine  Goldmark  of  the  Na 
tional  Consumers'  League;  and  deductions 
drawn  from  those  facts. 

First  of  all  the  counsel  pictures  the  condi 
tions  found  in  Oregon  by  the  Industrial  Wel 
fare  Commission  and  confirmed  by  investiga 
tion  in  other  States — that  working  women  do 
not  buy  enough  to  eat  in  order  that  they  may 
dress  decently,  that  those  who  do  eat  plenty 
go  without  proper  clothes  or  shelter,  that  those 
who  have  all  these  things  often  have  them  at  the 
expense  of  morality. 

He  argues  that  a  survey  of  the  four  remedies 
for  such  evils  proves  the  voluntary  remedies 
of  education  and  organisation  too  slow  to  pre 
vent  the  spread  of  misery;  the  Massachusetts 
plan  of  raising  wages  by  compulsory  publicity 
uncertain  and  unsuited  perhaps  to  Oregon ;  the 
legal  minimum  wage  now  on  trial  a  remedy 
founded  on  precedent  and  on  logic.  After 
eighteen  years  of  minimum  wage  legislation  in 
Victoria,  prosperity,  not  chaos,  is  found  in  that 
commonwealth,  and  in  England  wages  boards 
established  in  four  trades  in  1909  have  been 
extended  to  four  more  in  1913  without  destruc 
tion  to  the  empire. 

Nor,  Mr.  Brandeis  continues,  in  the  United 
States  with  its  constitutional  government  is  this 
process  of  restricting  individual  liberty  so  revo 
lutionary.  Factory  acts,  applying  first  to  chil- 


' l  THE  PAPER-BOX  FACTORY  GIEL ' >  143 

dren,  have  been  extended  to  women,  regulating 
hours  of  work,  lunch-hour  period,  night  work, 
etc.,  and  then  to  men,  regulating  their  employ 
ment  in  trades  hazardous  to  life  and  limb, 
trades  dangerous  to  health,  and  finally  the  sani 
tary  conditions  in  all  trades.  Freedom  of  con 
tract  is  an  empty  phrase,  avows  Mr.  Brandeis, 
when  it  implies  a  single  woman  pitted  against 
a  corporation,  and  the  laws  of  supply  and  de 
mand,  like  all  natural  laws,  must  be  regulated. 

His  final  appeal  is  for  a  broader  interpreta 
tion  of  the  Constitution.  It  lies  within  the  Con 
stitution  to  save  our  people,  he  declares,  or  it 
must  go  as  a  hindrance  to  progress.  It  is  most 
conservative,  in  the  true  sense  of  the  word,  to 
encourage  experiment. 

These  two  arguments  before  the  Supreme 
Court  bear  in  upon  the  spectators  as  more  than 
the  case  for  and  against  the  minimum  wage. 
They  reflect  two  attitudes  toward  a  document 
drawn  up  when  society  and  business  were  or 
ganised  on  a  scale  unrecognisable  in  the  huge 
operations  and  tense  competition  of  to-day. 
One  would  attempt  to  fit  the  infinite  march  of 
events  and  economic  and  social  change  to  a 
finite,  rigid  mould  of  constitutional  language; 
the  other  .would  adapt  its  principles  to  a 
changed  state  of  society  where  freedom  of  con 
tract  is  impaired  and  legal  protection  in  con 
tract  more  and  more  necessary.  They  lay  be 
fore  the  Supreme  Court  the  clash  between  ' '  that 
sacredness  of  private  property, "  the  very  bul 
wark  of  our  Constitution  according  to  the  plain 
tiffs — and  the  sacredness  of  human  life,  to  the 


144  CHAELES  E.  HUGHES 

defence,  the  real  meaning  of  constitutional  gov 
ernment. 

%. 

In  this  graphic  narrative  of  the  broad  and 
sympathetic  manner  in  which  great  issues  of 
human  welfare  and  economic  readjustment  are 
heard  by  the  Nation's  highest  Court,  Miss 
Chamberlain  depicts  Justice  Hughes  as  cen 
tering  the  issue  with  unerring  accuracy  on  what 
the  lawyers  call  the  very  "nub"  of  the  ques 
tion  which  will  go  hurtling  through  the  years, 
no  matter  what  in  the  particular  case  may  be 
the  decision  of  the  Court : 

If,  as  the  courts  have  held,  the  legis 
latures  may  wholesomely  limit  the  hours 
which  women  may  be  required  to  work 
in  industrial  employments,  for  reasons 
having  in  view,  not  merely  the  health  and 
welfare  of  women,  but  the  welfare  and 
protection  of  all  humankind,  what  shall 
be  the  metes  and  bounds  of  protective 
legislation,  if  legislatures  and  courts 
find  that  the  minimum  of  the  wages  paid 
to  women  in  industry  has  in  fact  a  no  less 
vital  and  causal  relation  to  conditions 
similar  to  those  against  which  the  hours- 
of-labor  statutes  are  aimed? 

"  Suppose, "  as  Justice  Hughes  in  effect  in 
quired;  "suppose  the  amount  of  wages  has  a 
relation  to  health  and  morals;  suppose  this 
Court  finds  that  these  evils  are  in  consequence 


'  <  THE  P APEE-BOX  FACTORY  GIRL '  '  145 

of  wages  paid  in  employment?  Is  there  not  a 
precedent  in  the  Ohio  case  x  in  which  this  Court 
held  constitutional  the  fifty-four  hour  for 
women  in  industry, ' '  and  also,  it  may  be  added, 
in  the  California  case,2  in  which,  in  the  very 
month  following  this  colloquy,  Mr.  Justice 
Hughes  held  constitutional  a  limitation  of 
women's  work-day  to  eight  hours  and  their 
work-week  to  forty-eight  hours? 

1Hawley  vs.  Walker  (232  U.  S.  Eeports,  page  718). 
3  Miller  vs.  Wilson  (236  U.  S.  Beports,  page  373). 


CHAPTER   VH 

COMPELLING  CHOICE  BETWEEN  WITHDRAWAL  FROM 
TRADES-UNION  MEMBERSHIP  AND  DISCHARGE 
FROM  EMPLOYMENT 

SEVERAL  years  before  Governor  Hughes  be 
came  Justice  Hughes,  the  Supreme  Court  had 
held  that,  even  as  it  was  the  constitutional  right 
of  an  employe  to  join  or  refrain  from  joining 
a  trades-union  and  the  constitutional  right  of 
the  employer  to  hire  or  refrain  from  hiring 
union  or  non-union  workmen,  so  it  was  the  con 
stitutional  right  of  a  union  employe  to  quit  the 
service  of  an  employer  who  hired  non-union 
men  and  the  right  of  the  employer  to  discharge 
an  employe  because  of  the  latter 's  membership 
or  non-membership  in  a  trades-union.  In  the 
Adair  case,1  it  was  ruled  that  the  constitutional 
guaranties  of  freedom  of  contract  render  in 
valid  a  Congressional  statute  by  which  it  was 
sought  to  make  it  a  crime  against  the  United 
States  for  an  interstate  carrier  to  discharge  an 
employe  because  of  his  membership  in  a  labour 
organisation. 

In  1914,  the  question  arose  as  to  the  validity 

1  Adair  vs.  U.  S.  (208  U.  S.  Keports,  page  161). 
146 


TRADES-UNION  MEMBERSHIP       147 

of  a  Kansas  statute,  of  a  kind  already  held  in 
valid  by  the  New  York  Court  of  Appeals,1 
whereby  it  was  made  a  misdemeanour  for  any 
employer  "to  coerce,  require,  demand  or  in 
fluence  any  person  or  persons  to  enter  into  any 
agreement,  either  written  or  verbal,  not  to  join 
or  become  or  remain  a  member  of  any  labour 
organisation  or  association,  as  a  condition  of 
such  person  or  persons  securing  employment  or 
continuing  in  the  employment  of"  such  em 
ployer.  The  majority  of  the  Supreme  Court 
thought  that  this  statute  was  unconstitutional.2 
They  urged  that  the  invalidity  of  this  enact 
ment  was  an  inevitable  corollary  of  the  decision 
in  the  Adair  case.  As  they  saw  it : 

Under  constitutional  freedom  of  contract, 
whatever  either  party  has  the  right  to  treat  as 
sufficient  ground  for  terminating  the  employ 
ment,  where  there  is  no  stipulation  on  the  sub 
ject,  he  has  the  right  to  provide  against  by  in 
sisting  that  a  stipulation  respecting  it  shall  be 
a  sine  qua  non  of  the  inception  of  the  employ 
ment,  or  of  its  continuance  if  it  be  terminable 
•at  will. 

As  in  the  Adair  case,  the  majority  looked  upon 
the  right  to  labour,  and  the  right  to  make  con 
tracts  respecting  employment,  as  property 
rights.  Labour  was  viewed  essentially  as  a 
"  commodity, "  just  as  any  of  its  products  in 

1  People  vs.  Marcus  (185  N.  Y.  Eeports,  page  257). 
*Coppage  vs.  Kansas    (236  U.  S.  Eeports,  page  1). 


148  CHARLES  E.  HUGHES 

the  market,  and  the  right  to  work  and  gain  a 
livelihood  therein  was  looked  upon  as  a  prop 
erty  right,  standing  in  an  economic  and  legal 
relation  not  distinguishable  from  that  of  ordi 
nary  articles  of  commerce.  The  majority  said: 

Included  in  the  right  of  personal  liberty  and 
the  right  of  private  property — partaking  of 
the  nature  of  each — is  the  right  to  make  con 
tracts  for  the  acquisition  of  property.  Chief 
among  such  contracts  is  that  of  personal  em 
ployment,  by  which  labour  and  other  services 
are  exchanged  for  money  or  other  forms  of 
property.  If  this  right  be  struck  down  or  ar 
bitrarily  interfered  with,  there  is  a  substantial 
impairment  of  liberty  in  the  long-established 
Constitutional  sense. 

The  prevailing  opinion  denied  that  it  was 
within  the  power  of  the  State  to  declare  that 
"Coppage,  the  plaintiff  in  error,  is  a  criminal 
punishable  with  fine  or  imprisonment  under 
this  statute  simply  and  merely  because,  while 
acting  as  the  representative  of  the  Railroad 
Company  and  dealing  with  Hedges,  an  em 
ploye  at  will  and  a  man  of  full  age  and  under 
standing,  subject  to  no  restraint  or  disability, 
Coppage  insisted  that  Hedges  should  freely 
choose  whether  he  would  leave  the  employ  of 
the  Company  or  would  agree  to  refrain  from 
association  with  the  union  while  so  employed. ' ' 
What  Justice  Hughes  thought  of  the  Adair 
case  and  what  he  would  have  done  and  said  had 


TKADES-UNION    MEMBERSHIP       149 

he  been  a  member  of  the  Court  at  the  time  it 
was  decided,  has  never  been  disclosed ;  but  he  at 
least  did  not  think  well  of  a  probably  logical 
extension  of  its  doctrine  to  the  Coppage  case, 
and  was  unable  to  give  assent  to  the  proposi 
tion  that  the  legislature  of  a  State  might  not, 
in  its  discretion,  forbid  an  employer  to  require 
an  employe  to  agree  affirmatively  not  to  join 
or  become  or  remain  a  member  of  a  trades- 
union  during  the  period  of  his  employment,  as 
a  condition  of  such  person  being  permitted  to 
become  or  remain  an  employe  of  the  employer 
insisting  upon  such  a  condition  precedent  of 
employment. 

Justice  Holmes  dissented  from  the  majority 
ruling,  in  a  compact  memorandum  which  reit 
erated  the  views  many  times  expressed  by  him, 
in  the  Supreme  Court  and  in  the  Massachusetts 
court.  Justice  Day  and  Justice  Hughes  like 
wise  dissented,  and  the  former  prepared  a 
memorandum l  which  expressed  the  views  in 
which  the  latter  concurred.  Justice  Day  and 
Justice  Hughes  were  unable  to  indorse  the  ma 
jority  conclusion  that  a  right  to  require  any 
such  agreement  from  trades-union  employes, 
even  on  penalty  of  discharge  or  refusal  to  hire, 
was  essential  to  the  assured  mutual  freedom  of 
contract  on  the  part  of  both  employer  and  em 
ployed.  They  contended  that  inasmuch  as  men 
had  the  right  to  choose  freely  whether  they 
would  join  trades-unions  and  inasmuch  as  the 

1  Coppage  vs.  Kansas  (236  U.  S.,  page  27). 


150  CHAELES  E.  HUGHES 

law  looks  with  favour  upon  membership  in  such 
organisations  for  common  industrial  better 
ment,  the  Legislature  of  Kansas  had  the  right 
to  forbid  attempts  to  coerce  an  unwilling  em 
ploye  to  agree  to  forego  the  exercise  of  his 
wholesome  legal  right  of  membership,  even  to 
the  point  of  refusing  him  employment  or  con 
tinued  employment  at  all  unless  he  was  willing 
thus  to  agree  not  to  do  what  he  lawfully  and 
desirably  might  do,  in  the  exercise  of  his  sup 
posedly  assured  rights. 

The  reasoning  of  the  opinion  concurred  in  by 
Justice  Hughes  is  interesting,  as  expressive  of 
a  broad  and  modern  outlook  upon  industrial 
relationships : 

That  the  right  of  contract  is  a  part  of  indi 
vidual  freedom  within  the  protection  of  this 
(Fourteenth)  amendment,  and  may  not  be  arbi 
trarily  interfered  with,  is  conceded.  While 
this  is  true,  nothing  is  better  settled  by  the 
repeated  decisions  of  this  court  than  that  the 
right  of  contract  is  not  absolute  and  unyielding, 
but  is  subject  to  limitation  and  restraint  in  the 
interest  of  the  public  health,  safety  and  welfare, 
and  such  limitations  may  be  declared  in  legisla 
tion  of  the  State.  .  .  .  Whether  a  given  exer 
cise  of  such  authority  transcends  the  limits  of 
legislative  authority  must  be  determined  jin 
each  case  as  it  arises.  The  preservation  of  the 
police  power  of  the  States,  under  the  authority 
of  which  that  great  mass  of  legislation  has  been 
enacted  which  has  for  its  purpose  the  pro 
motion  of  the  health,  safety  and  welfare  of 


TRADES-UNION   MEMBEESHIP       151 

the  public,  is  of  the  utmost  importance.  .  .  . 

Of  the  necessity  of  such  legislation,  the  local 
legislature  is  itself  the  judge,  and  its  enact 
ments  are  only  to  be  set  aside  when  they  in 
volve  such  palpable  abuse  of  power  and  lack 
of  reasonableness  to  accomplish  a  lawful  end 
that  they  may  be  said  to  be  merely  arbitrary 
and  capricious,  and  hence  out  of  place  in  a  gov 
ernment  of  laws  and  not  of  men,  and  irrecon 
cilable  with  the  conception  of  due  process  of 
law.  .  .  .  By  this  it  is  not  meant  that  the  legis 
lative  power  is  beyond  judicial  review.  Such 
enactments  as  are  arbitrary  .or  unreasonable 
and  thus  exceed  the  exercise  of  legislative  au 
thority  in  good  faith,  may  be  declared  invalid 
when  brought  in  review  by  proper  judicial  pro 
ceedings.  This  is  necessary  to  the  assertion 
and  maintenance  of  the  supremacy  of  the  Con 
stitution.  .  .  . 

The  question  now  presented  is,  May  an  em 
ployer,  as  a  condition  of  present  or  future  em 
ployment,  require  an  employe  to  agree  that  he 
will  not  exercise  the  privilege  of  becoming  a 
member  of  a  labour  union,  should  he  see  fit  to 
do  so?  In  my  opinion,  the  cases  are  entirely 
different,  and  the  decision  of  the  o/uestions  con 
trolled  by  different  principles.  The  right  to 
join  labour  unions  is  undisputed,  and  has  been 
the  subject  of  frequent  affirmation  in  judicial 
opinions.  Acting  within  their  legal  rights,  such 
associations  are  as  legitimate  as  any  organisa 
tion  of  citizens  formed  to  promote  their  com 
mon  interest.  They  are  organised  under  the 
laws  of  many  States,  by  virtue  of  express  stat 
utes  passed  for  that  purpose,  and,  being  legal, 


152  CHAELES  E.  HUGHES 

and  acting  within  their  constitutional  rights,  the 
right  to  join  them,  as  against  coercive  action 
to  the  contrary,  may  be  the  legitimate  subject 
of  protection  in  the  exercise  of  the  police  au 
thority  of  the  States.  This  statute,  passed  in 
the  exercise  of  that  particular  authority  called 
the  police  power,  the  limitations  of  which  no 
court  has  yet  undertaken  precisely  to  define,  has 
for  its  avowed  purpose  the  protection  of  the 
exercise  of  a  legal  right,  by  preventing  an  em 
ployer  from  depriving  the  employe  of  it  as  a 
condition  of  obtaining  employment.  I  see  no 
reason  why  a  State  may  not,  if  it  chooses,  pro 
tect  this  right,  as  well  as  other  legal  rights.  .  .  . 
It  is  urged  that  a  labour  organisation — a  vol 
untary  association  of  working-men — has  the 
constitutional  right  to  deny  membership  to  any 
man  who  will  not  agree  that  during  such  mem 
bership  he  will  not  accept  or  retain  employment 
in  company  with  non-union  men.  And  it  is  as 
serted  that  there  cannot  be  one  rule  of  liberty 
for  the  labour  organisation  and  its  members 
and  a  different  and  more  restrictive  rule  for 
employers.  .  .  .  An  analogous  case,  viewed 
from  the  employer's  standpoint,  would  be :  Can 
the  State,  in  the  exercise  of  its  legislative 
power,  reach  concerted  effort  of  employes  in 
tended  to  coerce  the  employer  as  a  condition  of 
hiring  labour  that  he  shall  engage  in  writing  to 
give  up  his  privilege  of  association  with  other 
employers  in  legal  organisations,  corporate  or 
otherwise,  having  for  their  object  a  united  effort 
to  promote  by  legal  means  that  which  employers 
believe  to  be  for  the  best  interest  of  their  busi 
ness?  . 


TEADES-UNION   MEMBEBSHIP       153 

I  entirely  agree  that  there  should  be  the 
same  rule  for  employers  and  employed,  and  the 
same  liberty  of  action  for  each.  In  my  judg 
ment,  the  law  may  prohibit  coercive  attempts, 
such  as  are  here  involved,  to  deprive  either  of 
the  free  right  of  exercising  privileges  which  are 
theirs  within  the  law.  .  .  .  The  penalty  imposed 
is  not  for  the  discharge  but  for  the  attempt  to 
coerce  an  unwilling  employe  to  agree  to  forego 
the  exercise  of  the  legal  right  involved  as  a  con 
dition  of  employment.  It  is  the  requirement  of 
such  agreements  which  the  State  declares  to  be 
against  public  policy. 

I  think  that  the  act  now  under  consideration, 
and  kindred  ones,  are  intended  to  promote  the 
same  liberty  of  action  for  the  employe  as  the 
employer  confessedly  enjoys.  The  law  should 
be  as  zealous  to  protect  the  constitutional  lib 
erty  of  the  employe  as  it  is  to  guard  that  of 
the  employer.  A  principal  object  of  this  statute 
is  to  protect  the  liberty  of  the  citizen  to  make 
such  lawful  affiliations  as  he  may  desire  with 
organisations  of  his  choice.  It  should  not  be 
necessary  to  the  protection  of  the  liberty  of 
one  citizen  that  the  same  right  in  another  citi 
zen  be  abridged  or  destroyed. 

Out  of  the  atmosphere,  and  with  the  advan 
tage  of  a  leisurely  examination  of  both  opin 
ions,  the  minority  declaration  does  not  seem  a 
notably  cordial  acclaim  and  acceptance  of  the 
doctrine  or  the  holding  of  the  Adair  case. 


CHAPTER 

THE    RIGHTS    AND    INDUSTRIAL    STATUS    OP    WOMEN 

*  JUSTICE  HUGHES  had  been  on  the  bench  about 
two  weeks  when  there  was  presented  a  vital 
question  as  to  property  rights  of  married 
women,  at  common  law  and  under  the  enlight 
ened  statutes  which  have  in  recent  years  been 
passed  as  steps  towards  emancipating  the  wife 
from  the  common-law  concept  of  the  merger  of 
her  legal  existence  in  that  of  her  husband.  The 
question  was,  in  substance,  whether  in  the  Dis 
trict  of  Columbia,  under  the  statute  passed  by 
Congress  in  1901,  a  married  woman  was  em 
powered,  not  only  to  sue  others  in  her  own 
right  for  redress  for  wrongs  done  to  her  person 
or  her  property,  but  also  to  maintain  an  action 
against  the  man  to  whom  she  was  still  joined 
in  marital  bond,  to  recover  damages  for  an 
assault  and  battery  committed  by  him  against 
her. 

The  wife  who  sought  to  sue  her  well-to-do 
spouse  was  named  Thompson.  She  charged 
that  she  had  been  brutally  beaten  on  seven  dif 
ferent  days,  separated  in  point  of  time.  On 
four  of  these  occasions  on  which  she  was  the 
victim  of  force  and  violence,  she  said  that  she 

154 


EIGHTS  OF  WOMEN  155 

was  enceinte  and  that  her  husband  knew  it 
when  he  added  force  to  wrath  against  her.  The 
items  of  her  complaint  indicated  that  she  was 
seriously  injured,  and  she  asked  damages  in 
the  sum  of  $70,000,  which  she  thought  her  err 
ing  spouse  could  well  afford  to  pay.  She 
sought  to  sue  in  her  own  name  and  in  her  own 
right,  to  recover  damages  as  any  other  person 
could,  compensatory  of  physical  injuries  in 
flicted  upon  her.  The  District  of  Columbia 
Courts  ruled  that  she  could  not  sue  at  all,  and 
her  attorneys  carried  the  matter  to  the  Su 
preme  Court,  which  is  the  court  of  final  appeal 
for  the  District  of  Columbia,  regardless 
whether  an  otherwise  "Federal  question "  is 
involved  in  the  case  appealed. 

Upon  the  question  of  the  construction  of  this 
statute  and  the  rights  of  women  thereunder, 
Justice  Hughes  found  himself  for  the  first  time 
at  variance  with  a  large  majority  of  his  col 
leagues.  They  agreed  with  the  District  Court, 
and  he  therefore  felt  compelled  to  register  his 
earnest  dissent  from  the  decision  of  the  Court. 
Justice  Day  delivered  the  opinion  which  set 
forth  the  prevailing  view.  The  statute  under 
construction  provided  that 

Married  women  shall  have  power  to  engage 
in  any  business,  and  to  contract,  whether  en 
gaged  in  business  or  not,  and  to  sue  separately 
upon  their  contracts,  and  also  to  sue  separately 
for  the  recovery,  security  or  protection  of  their 


156  CHAELES  E.  HUGHES 

property,  and  for  torts  committed  against  them, 
as  fully  and  freely  as  if  iliey  were  unmar 
ried.  .  .  . 

The  majority  of  the  Court  held,1  in  effect,  that 
the  portions  of  the  statute  italicised  above 
should  be  read  and  taken  in  connection  with  the 
preceding  clause  which  authorised  separate  suit 
"for  the  recovery,  security  or  protection  of 
their  property."  From  this  the  conclusion  was 
reached  that,  as  to  a  married  woman,  '  '  the  lim 
itation  upon  her  right  of  action  imposed  in  the 
requirement  of  the  common  law  that  the  hus 
band  should  join  her  (in  any  suit)  was  removed 
by  the  statute,  and  she  was  permitted  to  recover 
separately  for  such  torts  (committed  by  others), 
as  freely  as  if  she  were  still  unmarried.  The 
statute  was  not  intended  to  give  a  right  of  ac 
tion  as  against  the  husband.  ...  In  no  act  (of 
legislation)  called  to  our  attention  has  the  right 
of  the  wife  been  carried  to  the  extent  of  opening 
the  Courts  to  complaints  of  the  character  of  the 
one  here  involved. ' ' 

This  view  of  the  statute,  argued  with  great 
elaboration  of  reasoning  as  to  the  historical 
perspective  and  the  legislative  intent,  the  new 
Justice  was  unable  to  adopt.  He  felt  the  stat 
ute  fairly  meant  what  it  said ;  he  found  his  di 
vergence  of  belief  also  shared  by  two  veterans 
of  the  Court;  and  he  joined  with  Justice 
Holmes  in  concurring  in  a  trenchant  opinion  of 

1  Thompson  vs.  Thompson  (218  U.  S.  Reports,  page  611). 


EIGHTS  OF  WOMEN  157 

dissent,  read  by  Justice  Harlan,  in  part  as 
follows : 

In  my  opinion  these  statutory  provisions, 
properly  construed,  embrace  such  a  case  as  the 

E  resent  one.  If  the  words  used  by  Congress 
iad  to  such  a  result,  and  if,  as  suggested,  that 
result  be  undesirable  on  grounds  of  public 
policy,  it  is  not  within  the  functions  of  the 
court  to  ward  off  the  dangers  feared  or  the  evils 
threatened  simply  by  a  judicial  construction 
that  will  defeat  the  plainly-expressed  will  of 
the  legislative  department.  With  the  mere 
policy,  ^xpediency  or  justice  of  legislation  the 
courts,  in  our  system  of  government,  have  no 
rightful  concern.  Their  duty  is  only  to  declare 
what  the  law  is,  not  what,  in  their  judgment,  it 
ought  to  be — leaving  the  responsibility  for 
legislation  where  it  exclusively  belongs,  that  is, 
with  the  legislative  department,  so  long  as  it 
keeps  within  constitutional  limits.  Now,  there 
is  not  here,  as  I  think,  any  room  whatever  for 
mere  construction — so  explicit  are  the  words 
of  Congress.  Let  us  follow  the  clauses  of  the 
statute  in  their  order.  The  statute  enables  the 
married  woman  to  take,  as  her  own,  property  of 
any  kind,  no  matter  how  acquired  by  her,  as 
well  as  the  avails  of  her  skill,  labour  or  personal 
exertions,  "as  absolutely  as  if  she  were  unmar 
ried."  It  then  confers  upon  married  women 
the  power  to  engage  in  any  business,  no  matter 
what,  and  to  enter  into  contracts,  whether  en 
gaged  in  business  or  not,  and  to  sue  separately 
upon  those  contracts.  If  the  statute  stopped 
here,  there  would  be  ground  for  holding  that 


158  CHAELES  E.  HUGHES 

it  did  not  authorise  this  suit.  But  the  statute 
goes  much  further.  It  proceeds  to  authorise 
married  women  "also"  to  sue  separately  for 
the  recovery,  security  and  protection  of  their 
property ;  still  more,  they  may  sue,  separately, 
"for  torts  committed  against  them  as  fully  and 
freely  as  if  they  were  unmarried."  No  dis 
crimination  is  made,  in  either  case,  between  the 
persons  charged  with  committing  the  tort.  No 
exception  is  made  in  reference  to  the  husband, 
if  he  happens  to  be  the  party  charged  with 
transgressing  the  rights  conferred  upon  the 
wife  by  the  statute.  In  other  words,  Congress, 
by  these  statutory  provisions,  destroys  the 
unity  of  the  marriage  association  as  it  had  pre 
viously  existed.  It  makes  a  radical  change  in 
the  relations  of  man  and  wife  as  those  relations 
were  at  common  law  in  this  District.  In  respect 
of  business  and  property  the  married  woman 
is  given  absolute  control;  in  respect  of  the  re 
covery,  security  and  protection  of  her  property, 
she  may  sue,  separately,  in  tort,  as  if  she  was 
unmarried ;  and  in  respect  of  herself,  that  is,  of 
her  person,  she  may  sue,  separately,  as  fully 
and  freely  as  if  she  were  unmarried,  "for  torts 
committed  against  her."  So  the  statute  ex 
pressly  reads. 

But  my  brethren  think  that  notwithstanding 
the  destruction  by  the  statute  of  the  unity  of 
the  married  relation,  it  could  not  have  been  in 
tended  to  open  the  doors  of  the  courts  to  accu 
sations  of  all  sorts  by  husband  and  wife  against 
each  other;  and,  therefore,  they  are  moved  to 
add,  by  construction,  to  the  provision  that  mar 
ried  women  may  "sue  separately  .  .  .  for 


EIGHTS  OF  WOMEN  159 

torts  committed  against  them  as  fully  and 
freely  as  if  they  were  unmarried"  these  words : 
"  Provided,  however,  that  the  wife  shall  not 
be  entitled,  in  any  case,  to  sue  her  husband  sep 
arately  for  a  tort  committed  against  her  per- 
son."  If  the  husband  violently  takes  posses 
sion  of  his  wife's  property  and  withholds  it 
from  her  she  may,  wider  the  statute,  sue  him, 
separately,  for  its  recovery.  But  such  a  civil 
action  will  be  one  in  tort.  If  he  injures  or  de 
stroys  her  property  she  may,  under  the  statute, 
sue  him,  separately,  for  damages.  That  action 
would  also  be  one  in  tort.  If  these  propositions 
are  disputed,  what  becomes  of  the  words  in  the 
statute  to  the  effect  that  she  may  "sue  sep 
arately  for  the  recovery,  security  and  protec 
tion"  of  her  property?  But  if  they  are  con 
ceded — as  I  think  they  must  be — then  Congress, 
under  the  construction  now  placed  by  the  court 
on  the  statute,  is  put  in  the  anomalous  position 
of  allowing  a  married  woman  to  sue  her  hus 
band  separately,  in  tort,  for  the  recovery  of  her 
property,  but  denying  her  the  right  or  privilege 
to  sue  him  separately,  in  tort,  for  damages  aris 
ing  from  his  brutal  assaults  upon  her  person. 
I  will  not  assume  that  Congress  intended  to 
bring  about  any  such  result.  I  cannot  believe 
that  it  intended  to  permit  the  wife  to  sue  the 
husband  separately,  in  tort,  for  the  recovery, 
including  damages  for  the  detention,  of  her 
property,  and  at  the  same  time  denying  her  the 
right  to  sue  him,  separately,  for  a  tort  com 
mitted  against  her  person. 

I  repeat  that  with  the  policy,  wisdom  or  jus 
tice  of  the  legislation  in  question  this  court  can 


160  CHARLES  E.  HUGHES 

have  no  rightful  concern.  It  must  take  the  law 
as  it  has  been  established  by  competent  legisla 
tive  authority.  It  cannot,  in  any  legal  sense, 
make  law,  but  only  declare  what  the  law  is,  as 
established  by  competent  authority. 

My  brethren  feel  constrained  to  say  that  the 
present  case  illustrates  the  attempt,  often  made, 
to  effect  radical  changes  in  the  common  law  by 
mere  construction.  On  the  contrary,  the  judg 
ment  just  rendered  will  have,  as  I  think,  the 
effect  to  defeat  the  clearly  expressed  will  of 
the  legislature  by  a  construction  of  its  words 
that  cannot  be  reconciled  with  their  ordinary 
meaning. 

A  year  later  there  was  before  the  Supreme 
Court  another  cause  which  had  important  bear 
ing  upon  the  validity  of  modern  legislation  for 
the  better  safeguarding  of  the  status  of  the 
wife  under  the  marital  contract,  so  far  as  the 
earnings  and  property  of  the  husband  are  con 
cerned.  The  Massachusetts  Legislature  had  en 
acted  elaborate  provisions  as  to  the  assign 
ment  by  wage-earners  of  their  future  earnings. 
Among  other  things,  it  was  required  that  if  the 
employe  were  a  married  man,  the  written  con 
sent  of  his  wife  must  be  attached  to  the  written 
instrument  of  assignment.  The  Massachusetts 
Supreme  Judicial  Court  had  "justified  the  par 
tial  restriction  of  the  statute  on  the  ground  that 
the  extravagance  or  improvidence  of  the  wage- 
earner  might  tempt  to  the  disposition  of  wages 
to  be  earned,  and  he  and  his  family,  deprived 


EIGHTS  OF  WOMEN  161 

01  the  means  of  support,  might  become  a  public 
charge.  It  was  pointed  out  besides  that  his 
needs  might  be  taken  advantage  of  by  the  un 
scrupulous.  .  .  .  The  Court  found  more  diffi 
culty  with  the  provision  which  requires  the  con 
sent  of  the  wage-earner's  wife  to  the  assign 
ment,  but  justified  it  on  the  general  considera 
tions  we  have  mentioned,  and  on  the  ground  of 
her  interest  in  the  right  use  of  his  wages,  though 
she  have  no  legal  title  in  them." 

In  sustaining  the  statute,  the  Supreme  Court 
of  the  United  States  continued  by  saying,1  in  an 
opinion  concurred  in  by  Justice  Hughes  and  all 
his  colleagues : 

We  cannot  say,  therefore,  that  the  statute  as 
a  police  regulation  is  arbitrary  and  unreason 
able  and  not  designed  to  accomplish  a  legiti 
mate  public  purpose. 

Elsewhere  in  the  same  opinion,  the  Supreme 
Court,  brought  face  to  face  with  traditional 
rules  which  take  no  account  of  the  dawning  of 
a  new  day  in  the  concept  of  property  rights 
under  the  contract  of  marital  partnership,  said : 

Legislation  cannot  be  judged  by  theoretical 
standards.  It  must  be  tested  by  the  concrete 
conditions  which  induced  it. 

Basic  questions  as  to  the  industrial  status 
of  women  and  the  power  of  the  State  to  protect 

1  Mutual  Loan  Co.  vs.  Kartell  (222  U.  S.  Reports,  page  225). 


162  CHARLES  E.  HUGHES 

itself  by  intervening  to  protect  them,  were 
passed  upon  by  Justice  Hughes  in  the  case  of 
Miller  against  Wilson  *  and  in  Bosley  against 
McLaughlin,2  both  of  which  were  argued  before 
the  Supreme  Court  by  Louis  D.  Brandeis,  ap 
pearing  in  behalf  of  the  constitutionality  of  the 
California  statutes  under  review.  In  the  Miller 
case,  a  hotel  proprietor  had  been  arrested  for 
requiring  a  chambermaid  to  work  in  his  hotel 
for  nine  hours  a  day,  in  violation  of  the  provi 
sion  of  law  which  prohibited  the  employment 
of  any  woman  "in  any  manufacturing,  mechan 
ical  or  mercantile  establishment,  laundry,  hotel 
or  restaurant,  or  telephone  or  telegraph  estab 
lishment  or  office,  or  by  any  express  or  trans 
portation  company  in  this  State  more  than  eight 
hours  during  any  one  day  or  more  than  forty- 
eight  hours  in  one  week." 

Upon  the  vital  question  "whether  the  restric 
tions  of  the  statute  have  a  reasonable  relation 
to  a  proper  purpose,"  Mr.  Justice  Hughes  said 
that l '  the  recent  decisions  of  this  Court  uphold 
ing  other  statutes  limiting  the  hours  of  labour  of 
women  must  be  regarded  as  decisive.  In  Muller 
v.  Oregon  (208  U.  S.  Reports,  page  412)  ... 
the  decision  was  based  upon  considerations  re 
lating  to  woman's  physical  structure,  her  mater 
nal  functions,  and  the  vital  importance  of  her 
protection  in  order  to  preserve  the  strength 
and  vigour  of  the  race." 

1 236  U.  S.  Keports,  page  373. 
J  236  U.  S.  Reports,  page  385. 


EIGHTS  OF  WOMEN  163 

"She  is  properly  placed  in  a  class  by  her 
self,  ' '  said  the  Court  in  the  portion  of  the  opin 
ion  in  the  Muller  case  quoted  by  Justice  Hughes, 
"and  legislation  designed  for  her  protection 
may  be  sustained,  even  when  like  legislation  is 
not  necessary  for  men  and  could  not  be  sus 
tained.  .  .  .  The  limitations  which  this  statute 
places  upon  her  contractual  powers,  upon  her 
right  to  agree  with  her  employer  as  to  the  time 
she  shall  labour,  are  not  imposed  solely  for  her 
benefit,  but  also  largely  for  the  benefit  of  all." 

The  opinion  written  by  Justice  Hughes  for  a 
unanimous  Court  in  the  Miller  case  sustained 
the  constitutionality  of  the  California  eight- 
hour  work-day  statute,  including  the  power  of 
the  Legislature  to  make  the  regulation  apply  to 
certain  vocations  of  women  and  not  to  others. 
In  the  Bosley  case,  Justice  Hughes  likewise 
wrote  for  a  unanimous  Court,  and  held  that  in 
view  of  the  nature  of  the  work  done  by  student 
nurses  and  pharmacists  in  hospitals  and  the 
public  importance  that  work  of  that  kind  should 
not  be  done  by  persons  overfatigued,  the  Legis 
lature  had  the  right  to  limit  their  daily  service 
to  eight  hours,  and  did  not  act  arbitrarily  or 
unreasonably  in  exempting  graduate  nurses 
from  the  operation  of  the  statute,  in  view  of 
the  disclosed  differences  in  the  conditions  under 
which  they  perform  their  work. 


CHAPTER   IX 

FRANCHISE  OBLIGATIONS  AND  VESTED  RIGHTS 

IT  was  a  reasonable  expectation  that  one  who 
in  high  administrative  position  had  worked 
long  and  patiently  with  public  utility  problems 
in  a  great  City  and  State,  would  bring  to  judi 
cial  service  a  broad,  fair  and  constructive  point 
of  view  as  to  the  duration  and  scope  of  fran 
chise  grants,  and  as  to  the  reciprocal  rights  and 
obligations  arising  under  them,  on  the  part 
alike  of  the  municipality  and  the  corporation 
receiving  the  grant.  Governor  Hughes  went  to 
the  Supreme  Court  fresh  from  the  considera 
tion  of  many  franchise  and  public  service  prob 
lems  in  New  York  City  and  State,  and  he 
brought  a  definite,  forward-looking  grasp  of  the 
legal  principles  which  govern  the  vesting  of 
franchise  rights  and  the  results  which  the  public 
has  the  right  to  expect  from  the  bestowal  of 
privileges  of  user  of  public  thoroughfares. 

In  New  York  Electric  Lines  Company  against 
Empire  City  Subway  Company,1  decided  in 
1914,  there  was  a  corporate  challenge  of  the 
right  and  power  of  the  City  of  New  York  to  re- 

*235  U.  S.  Eeports,  page  179. 
J64 


FRANCHISE  OBLIGATIONS        165 

yoke,  in  1906,  a  franchise  which  had  been 
granted  in  1878,  for  the  laying  of  wires  or 
other  conductors  of  electricity  in  conduits  under 
the  streets.  The  New  York  Electric  Lines  Com 
pany  did  virtually  nothing  with  the  franchise 
— certainly  nothing  by  way  of  using  it  or  giving 
the  public  any  service  under  it;  but  when  the 
privilege  had  become  very  valuable,  the  com 
pany  sought  to  assert  tardily  the  right  which 
it  had  been  treating  "as  susceptible  of  prac 
tically  indefinite  retention  unused. "  Justice 
Hughes  held  that  the  public  had  a  right  to  re 
ceive  beneficial  results  from  franchise  grants  or 
terminate  them;  "the  right  conferred  was  to  be 
used  within  a  reasonable  time  or  lost."  His 
opinion  said,  in  part: 

It  has  always  been  recognised  that,  as  a  fran 
chise  is  given  in  order  that  it  may  be  exercised 
for  the  public  benefit,  the  failure  to  exercise  it 
as  contemplated  is  ground  for  revocation  or 
withdrawal.  In  the  cases  where  the  right  of 
revocation  in  the  absence  of  express  condition 
has  been  denied,  it  will  be  found  that  there  has 
been  performance  at  least  to  some  substantial 
extent  or  that  the  grantee  is  duly  proceeding 
to  perform.  And  when  it  is  said  that  there  is 
vested  an  indefeasible  interest,  easement,  or 
contract  right*,  it  is  plainly  meant  to  refer  to 
a  franchise  not  only  granted  but  exercised  in 
conformity  with  the  grant. 

It  is  a  tacit  condition  annexed  to  grants  of 
franchises  that  they  may  be  lost  by  mis-user 


166  CHAELES  E.  HUGHES 

or  non-user.  .  .  .  The  conception  of  the  permis 
sion  as  giving  rise  to  a  right  of  property  in  no 
way  involves  the  notion  that  the  exercise  of 
the  franchise  may  be  held  in  abeyance  for  an 
indefinite  time,  and  that  the  right  may  thus  be 
treated  as  a  permanent  lien  upon  the  public 
streets,  to  be  enforced  for  the  advantage  of  the 
owner  at  any  time,  however  distant.  Although 
the  franchise  is  property,  "it  is  subject  to 
defeasance  or  forfeiture  by  failure  to  exercise 
it,  or  by  subsequent  abandonment  after  it  has 
been  exercised."  If  "no  time  is  prescribed,  the 
franchise  must  be  exercised  within  a  reasonable 
time."  It  follows  that  where  the  franchise  has 
not  been  exercised  within  a  reasonable  time  in 
accordance  with  the  condition  which  inheres  in 
the  nature  of  the  grant,  its  revocation  upon  this 
ground  cannot  be  regarded  as  an  impairment  of 
contractual  obligation. 

In  other  causes,  likewise,  Justice  Hughes  re 
vealed  a  broad  and  common-sense  view  as  to 
the  essential  elements  of  an  "impairment  of 
the  obligation  of"  a  franchise  contract.  In 
Louisiana  Railway  &  Navigation  Company 
against  the  City  of  New  Orleans,1  he  declared 
that  "while  we  are  to  give  to  public  grants  a 
fair  and  reasonable  interpretation,  they  are  not 
to  be  extended  by  implication  beyond  their  clear 
intent,"  and  that  "the  contract"  on  which  the 
plaintiff  relies"  to  sustain  the  claim  that  a  sub 
sequent  repealing  ordinance  impaired  contract 

1 235  U.  S.  Reports,  page  164. 


FRANCHISE  OBLIGATIONS        167 

rights  of  the  company  "was  subject,  in  any  as 
pect,  to  a  suspensive,  condition,  that  the  event 
in  which  the  obligation  was  to  arise  did  not  hap 
pen,  and  hence  that  the  subsequent  enactment 
was  not  open  to  the  objection  raised."  In  Mis 
souri  and  Kansas  Interurban  Ry.  Co.  against 
the  City  of  Olathe,  Kansas,1  in  view  of  the  de 
cision  of  the  State  Court  that  the  company  had 
in  fact  had  substantially  all  the  privileges  in 
fact  conferred  by  the  franchise  contract  claimed 
to  be  "impaired,"  he  held  that  no  question  was 
presented  for  Federal  review.  In  Chicago,  M. 
&  St.  P.  Ry  Co.  against  the  City  of  Minneap 
olis,2  a  broad  and  practical  construction  was 
given  to  the  obligations  of  the  company  under 
its  franchise  and  the  State  law,  as  to  the  erec 
tion  of  bridges  or  viaducts  to  carry  streets  over 
tracks  or  tracks  over  streets,  in  connection  with 
a  new  waterway  being  constructed  for  recrea 
tional  purposes  between  two  lakes  in  public 
parks.  On  the  other  hand,  his  solicitude  for 
public  interests  led  to  no  sanctioning  of  strained 
constructions  to  extort  some  advantage  from 
a  franchise-holding  corporation.  As  he  said 
in  Russell  against  Sebastian,3  where  sections  of 
the  California  Constitution  and  municipal  ordi 
nances  of  Los  Angeles  were  under  review: 

The  established  and  salutary  rule  is  invoked 
that  public  grants  are  to  be  construed  strictly 

*222  U.  S.  Keports,  page  187. 
a232  U.  S.  Keports,  page  430. 
3  233  U.  S.  Beports,  page  195. 


168  CHAELES  E.  HUGHES 

in  favour  of  the  public;  that  ambiguities  are 
to  be  resolved  against  the  grantee.  ...  It  has 
often  been  stated,  as  one  of  the  reasons  for  the 
rule,  that  statutes  and  ordinances  embodying 
such  grants  are  usually  drawn  by  interested 
parties  and  that  it  serves  to  frustrate  efforts 
through  the  skilful  use  of  words  to  accomplish 
purposes  which  are  not  apparent  upon  the  face 
of  the  enactment.  .  .  .  But  it  must  also  be 
recognised  that  this  principle  of  construction 
does  not  deny  to  public  offers  a  fair  and  reason 
able  interpretation,  or  justify  the  withholding 
of  that  which  it  satisfactorily  appears  the  grant 
was  intended  to  convey.  .  .  .  Here,  the  pro 
vision  was  presented  by  a  constitutional  conven 
tion  for  adoption  by  the  people  as  the  deliberate 
expression  of  the  policy  of  the  State  in  order  to 
secure  the  benefits  of  competition  in  public  ser 
vice,  and  it  will  not  be  questioned  that  it  must 
receive,  as  the  State  Court  said  in  People  v. 
Stephens  (62  California  Reports,  page  233),  "a 
practical,  common-sense  construction.'' 

Upon  no  other  matter  did  Justice  Hughes  find 
himself  so  often  or  so  sharply  at  variance  with 
the  prevailing  judgment  of  his  gifted  col 
leagues,  as  concerning  assertions  of  the  per 
petual  character  of  granted  franchises  and  de 
nials  of  the  reserved  power  of  the  public  to 
repeal,  modify  or  revoke  such  grants.  In  City 
of  Owensboro  against  the  Cumberland  Tele 
phone  and  Telegraph  Company*  the  company 
said  the  municipality  had  no  power  to  revoke 

*230  U.  S.  Eeports,  page  58. 


FRANCHISE  OBLIGATIONS        169 

the  franchise  granted  to  it  by  a  municipal  ordi 
nance.  The  City  replied  that  the  franchise  ordi 
nance  itself  provided  that  "this  ordinance  may 
be  altered  or  amended  as  the  necessities  of  the 
City  may  demand, ' '  and  the  City,  moreover,  as 
serted  that  it  had  no  possible  power  to  grant  a 
franchise  perpetual  and  irrevocable,  for  the 
reason  that  the  City  Charter,  under  which  alone 
the  municipality  had  power  to  pass  the  fran 
chise  ordinance  at  all,  provided  that  the  Com 
mon  Council  should  have  "full  power  to  make, 
publish  and  repeal  all  ordinances  for  the  fol 
lowing  purposes " — among  others,  "to  regulate 
the  streets,"  which  included  the  granting  of 
franchises  to  use  the  streets. 

Five  of  the  justices  held  that  the  provisions 
of  the  franchise  ordinance  as  to  alteration  or 
amendment  thereof  did  not  amount  to  a  reserva 
tion  of  the  right  to  repeal  the  ordinance  alto 
gether,  and  that  the  provision  of  the  City  Char 
ter  as  to  the  power  of  the  Common  Council  to 
"repeal  all  ordinances"  "to  regulate  the 
streets"  "obviously  refers  to  ordinances  which 
are  legislative  in  character,  and  exertions  of 
the  governmental  power  of  the  municipal  coun 
cil, — a  power  in  its  nature  not  to  be  abridged 
by  irrepealable  ordinances."  Four  of  the  Jus 
tices,  among  them  Justice  Hughes,  dissented 
strongly  from  the  majority  view  that  the  ordi 
nance  franchise  was  perpetual  and  subject  to 
no  revocation  by  the  municipality.  The  minor 
ity  held  that  "the  permission. to  place  poles  and 


170  CHAELES  E.  HUGHES 

string  wires  in  the  City  of  Owensboro  was 
granted  under  a  charter  which  expressly  re 
served  the  right  to  repeal  by  subsequent  act  of 
the  municipal  legislature.  In  the  face  of  this 
authority  and  presumably  with  knowledge  of 
it,  the  company  has  entered  upon  the  streets 
and  made  use  of  them  for  the  purposes  in 
tended.  Holding  its  grant  subject  to  the  supe 
rior  right  of  the  City  to  end  it,  I  think  the  sub 
sequent  repealing  ordinance  was  within  the 
power  of  the  municipality. " 

In  Grand  Trunk  Western  Railway  Company 
against  the  City  of  South  Bend?  the  municipal 
ity  had  granted  the  company  a  franchise  to  lay 
a  double  track  on  certain  streets,  and  in  so  do 
ing  had  failed  to  reserve  specifically  any  right 
to  alter  or  repeal  the  grant.  After  the  company 
had  built  and  operated  the  double  track  over  a 
large  part  of  the  distance,  the  City  sought  to 
repeal  the  ordinance,  to  the  extent  of  taking 
away  any  right  to  maintain  more  than  one  track 
over  the  franchise  route.  This  action  was 
sought  on  grounds  of  the  safety  and  conveni 
ence  of  the  major  portion  of  the  public,  and 
justification  was  claimed  under  the  "police 
power"  to  which  every  franchise  is  impliedly 
subject.  The  majority  of  the  Court  held  that 
the  City  had  the  power  to  regulate  the  use  of  the 
franchise,  but  not  to  destroy  it  or  take  it  away, 
and  that  the  company  had  a  vested  right  which 
the  City's  subsequent  acts  threatened  to  im- 

1 227  U.  S.  Reports,  page  544. 


FRANCHISE  OBLIGATIONS        171 

pair.    From  this  view  Justices  Hughes  and  Pit 
ney  again  dissented. 

Upon  the  question  of  the  regulative  power  of 
government  to  require  extensions  and  additions 
to  the  facilities  afforded  by  franchise-holding 
public  utilities,  Justice  Hughes  declared,  in 
Union  Lime  Company  against  the  Chicago  & 
Northwestern  Railway  Company:1 

It  is  urged,  further,  that  the  statute  is  neces 
sarily  invalid  because  it  establishes  as  the  cri 
terion  of  the  Commission's  action  the  exigency 
of  a  private  business.  This  objection,  however, 
fails  to  take  account  of  the  distinction  between 
the  requirements  of  industry  and  trade  which 
may  warrant  the  building  of  a  branch  track  and 
the  nature  of  the  use  to  which  it  is  devoted  when 
built.  A  spur  may,  at  the  outset,  lead  only  to 
a  single  industry  or  establishment;  it  may  be 
constructed  to  furnish  an  outlet  for  the  prod 
ucts  of  a  particular  plant ;  its  cost  may  be  de 
frayed  by  those  in  special  need  of  its  service  at 
the  time.  But  none  the  less,  by  virtue  of  the 
conditions  under  which  it  is  provided,  the  spur 
may  constitute  at  all  times  a  part  of  the  trans 
portation  facilities  of  the  carrier  which  are  op 
erated  under  the  obligations  of  public  service 
and  are  subject  to  the  regulations  of  public  au 
thority.  As  was  said  by  this  court  in  Hairston 
v.  Danville  &  Western  Ry.  Co.:  "The  uses  for 
which  the  track  was  desired  are  none  the  less 
public  because  the  motive  which  dictated  its  lo 
cation  over  this  particular  land  was  to  reach  a 

1 233  U.  S.  Eeports,  page  211. 


172  CHAELES  E.  HUGHES 

private  industry,  or  because  the  proprietors  of 
that  industry  contributed  in  any  way  to  the 
cost."  There  is  a  clear  distinction  between 
spurs  which  are  owned  and  operated  by  a  com 
mon  carrier  as  a  part  of  its  system  and  under 
its  public  obligation  and  merely  private 
sidings.  .  .  . 

While  common  carriers  may  not  be  com 
pelled  to  make  unreasonable  outlays,  it  is  com 
petent  for  the  State,  acting  within  the  sphere 
of  its  jurisdiction,  to  provide  for  an  extension 
of  their  transportation  facilities,  under  reason 
able  conditions,  so  as  to  meet  the  demands  of 
trade;  and  it  may  impress  upon  these  exten 
sions  of  the  carriers'  lines,  thus  furnished  un 
der  the  direction  or  authority  of  the  State,  a 
public  character  regardless  of  the  number 
served  at  the  beginning.  The  branch  or  spur 
comes  into  existence  as  a  public  utility  and  as 
such  is  always  available  as  localities  change 
and  communities  grow.  The  Supreme  Court  of 
Wisconsin  has  left  no  doubt  with  respect  to  the 
public  obligations  imposed  upon  the  carrier  in 
relation  to  the  spurs  and  branches  to  be  pro 
vided  under  the  statute  in  question,  and  we  find 
no  ground  for  the  conclusion  that  this  enact 
ment  was  beyond  the  State  power. 


CHAPTER  X 

PKEJUDICIAL   RESTRAINT   OF    TRADE   AND   THE   NEED 
FOR  CERTAINTY  IN   THE  ANTI-TRUST  ACTS 

JUSTICE  HUGHES  went  to  the  Supreme  Court 
from  the  forum  of  public  affairs.  He  had  often, 
in  public  addresses,  given  expression  to  his 
views  as  to  the  advisable  form  and  scope  of  the 
statutes  aimed  at  oppressive  combinations  in 
restraint  of  trade,  and  the  means  of  making 
such  enactments  workable,  understandable,  and 
effective.  Perhaps  for  the  reason  that  he  had 
thus  recently  been  active,  in  the  political  sphere, 
in  the  formulation  of  policy-determining  opin 
ion  as  to  what  the  law  of  the  subject  ought  to 
be,  he  was  not,  during  the  months  first  follow 
ing  his  translation  to  the  judicial  sphere,  as 
signed  to  prepare  opinions  of  the  Court  on  ques 
tions  of  what  the  law  was  under  the  enactments 
then  in  force.  Upon  issues  of  the  inherent  fair 
ness  and  permissibleness  of  challenged  methods 
of  competition  with  trade  rivals,  he  prepared 
several  opinions  to  which  reference  will  be  made 
in  this  chapter;  but  upon  issues  involving  the 
interpretation  of  the  Sherman  Anti-Trust  Act, 
his  participation  was  not  reflected  by  the  prep 
aration  of  published  opinions. 

173 


174  CHARLES  E.  HUGHES 

In  1908  he  had  declared  1  that  "the  battle  for 
free  institutions  has  been  a  struggle  against 
special  privilege. "  At  Chicago  in  the  same 
year  he  had  said  2  that 

We  desire  to  put  an  end  to  unfair  practices, 
unjustifiable  preferences,  and  oppressive  pro 
ceedings  by  which,  apart  from  proper  economic 
advantages  or  superior  skill  in  industry,  rivals 
are  barred  from  equal  opportunities  and  thrust 
out  of  the  way  or  destroyed.  ...  In  a  free 
country  it  is  intolerable  that  one  should  be  de 
nied  equal  access  to  markets  by  discriminating 
rates  or  allowances,  or  that  he  should  be  the 
victim  of  a  conspiracy  to  deprive  him  of  his 
business,  or  that  he  should  be  crushed  by  the 
misuse  of  large  aggregations  of  capital  in  un 
fair  competition.  .  .  .  Laws,  State  and  Federal, 
should  be  as  definite  as  possible,  and  should 
apply  with  becoming  precision  to  the  practices 
sought  to  be  reached.  ...  It  is  possible  and 
advisable  in  dealing  with  this  subject  that  there 
should  be  a  more  explicit  and  appropriate  state 
ment  than  we  now  have  in  the  Sherman  Act: 
that  fair  agreements  as  to  railroad  rates  which 
may  receive  the  approval  of  the  Interstate  Com 
merce  Commission,  and  that  associations  and 
agreements  for  reasonable  and  obviously  prop 
er  purposes,  should  not  be  included  in  a  sweep 
ing  condemnation;  that  it  should  point  with  a 
more  definite  aim  at  the  evils  which  afflict  inter- 

1  Address  before  the  Kepublican  Club  of  the  City  of  New 
York  on  January  31,  1908. 

'Address  before  the  Union  League  Club  of  Chicago  on 
February  22,  1908. 


RESTRAINT  OF  TRADE          175 

state  commerce  and  for  which  it  is  in  the  power 
of  Congress  to  provide  a  remedy. 

The  evils  in  question  will  not  be  eradicated 
by  mere  changes  in  forms  of  organisations.  .  .  . 
The  way  to  get  rid  of  abuses  is  to  attack  them 
directly.  And  I  believe  the  most  efficacious 
means  is  definition  and  proscription,  and  ade 
quate  punishment  of  the  offenders.  The  pun 
ishment  is  most  salutary  when  visited  upon  the 
guilty  individuals.  Few  men  can  be  hired  to 
go  to  jail. 

Summoned  to  the  Supreme  Court  and  called 
on  to  decide  what  the  law  already  was,  Justice 
Hughes  concurred  in  the  judgment  of  all  except 
Justice  Harlan  of  his  colleagues  1  that,  under 
precedents  fairly  operative  and  upon  unmistak 
able  evidence  of  the  intention  of  Congress  in 
passing  the  Sherman  Law,  the  latter  could  not 
be  construed  by  the  Court  to  do  more  than  pro 
hibit  those  contracts,  agreements,  or  combina 
tions  which  operate  to  the  prejudice  of  public 
interests  by  unduly  restricting  the  wholesome 
play  of  trade  competition  o^r  unduly  obstructing 
the  beneficial  course  of  trade,  or  which,  either 
because  of  their  inherent  nature  or  effect  or  be 
cause  of  the  evident  purpose  of  the  acts  done, 
injuriously  restrain  the  accustomed  activities 
of  trade.  He  joined  in  the  conclusion  that  the 
statute  as  it  stood  "did  not  forbid  or  restrain 
the  power  to  make  normal  and  useful  contracts 

1  Standard  Oil  Co.  vs.  U.  S.   (221  U.  S.  Beports,  page  1); 
U.  S.  vs.  American  Tobacco  Co.  (221  U.  S.  Eeports,  page  106). 


176  CHARLES  E.  HUGHES 

to  further  trade  by  resorting  to  all  normal 
methods,  whether  by  agreement  or  otherwise, 
to  accomplish  such  purpose  "  and  that  the  words 
11  restraint  of  trade "  should  be  given  a  reason 
able  meaning  and  interpretation  which  would 
protect  the  public  interests  involved  and  "  would 
not  destroy  the  individual  right  to  contract  and 
render  difficult,  if  not  impossible,  any  movement 
of  trade  in  the  channels  of  interstate  commerce 
— the  free  movement  of  which  it  was  the  purpose 
of  the  statute  to  protect. ' '  Justice  Hughes  as 
sented  likewise  to  the  conclusion  that  the  statute 
"embraced  every  conceivable  act  which  could 
possibly  come  within  the  spirit  or  purpose  of 
the  prohibitions  of  the  law,  without  regard  to 
the  garb  in  which  such  acts  were  clothed, ' '  and 
that  "there  was  no  possibility  of  frustrating 
that  policy  (of  the  Act)  by  resorting  to  any  dis 
guise  or  subterfuge  of  form,  since  resort  to  rea 
son  rendered  it  impossible  to  escape  by  any  in 
directions  the  prohibitions  of  the  statute." 

As  to  the  historical  basis  for  this  construc 
tion  of  the  existing  statute,  or  as  to  the  prac 
ticability  or  adequacy  of  the  statute  as  thus  in 
terpreted  for  present-day  business  conditions, 
discussion  is  not  within  the  scope  of  this  vol 
ume.  It  may  be  sufficient  to  say  that  upon  ques 
tions  of  the  meaning  and  scope  of  the  Sherman 
Act,  Justice  Hughes,  with  a  single  interesting 
exception,  continued  in  accord  with  a  majority 
of  his  colleagues  and  concurred  in  their  opinions 
as  prepared. 


RESTRAINT  OF  TRADE  177 

As  an  interpreter  of  existing  law,  no  less  than 
when  an  advocate  of  changes  therein,  he  felt 
that  there  should  be  definiteness  as  well  as  fair 
ness  of  standards,  to  which  business  men  might 
conform  the  conduct  of  their  business,  and  this 
rule  of  certainty  in  standards  he  applied  to 
cases  arising  under  .the  Anti-Trust  Acts.  In 
Collins  against  Kentucky?  Collins  and  other  to 
bacco  growers  of  Mason  County,  Kentucky,  had 
entered  into  an  agreement  with  a  "tobacco 
pool"  society  authorised  by  the  State  statute, 
whereby  they  consigned  to  the  pool  their  respec 
tive  crops  of  tobacco,  to  be  sold  by  the  society 
as  their  agent  upon  such  terms  as  it  prescribed, 
not  less  than  a  fixed  minimum.  The  statute  for 
bade  a  person  entering  such  a  pool  to  dispose  of 
his  crop  without  the  consent  of  the  society; 
Collins  did  so  and  was  indicted.  The  statute 
had  been  construed  by  the  Kentucky  courts  as 
necessarily  to  be  read  in  connection  with  the 
Anti-Trust  Acts  of  the  State,  by  which  persons 
were  prohibited  from  entering  into  any  "pool 
or  agreement"  "to  fix,  control  or  regulate  the 
price  of  any  commodity  or  article  by  raising  or 
depreciating,  or  attempting  to  raise  or  depre 
ciate,  it  above  or  below  its  real  value."  As  to 
this  kind  of  legislation  and  the  conviction  of 
Collins  under  it,  Justice  Hughes  said : 

The  statute,  in  its  reference  to  "real  value," 
prescribed  no  standard  of  conduct  that  it  was 

1 234  U.  S.  Eeports,  page  634. 


178  CHABLES  E.  HUGHES 

possible  to  know;  ...  it  violated  tlie  funda 
mental  principles  of  justice  embraced  in  the 
conception  of  due  process  of  law  in  compelling 
men  on  peril  of  indictment  to  guess  what  their 
goods  would  have  brought  under  other  condi 
tions  not  ascertainable. 

The  Harvester  Company  was  prosecuted l  for 
being  a  party  to  a  price-raising  combination; 
Collins,  for  breaking  a  combination  agreement 
and  selling  outside  the  pool  which  he  had  joined. 
With  respect  to  each,  the  test  of  the  legality  of 
the  combination  was  said  to  be  whether  it  raised 
prices  above  the  "real  value."  If  it  did — in 
Collins'  case — he  would  be  subject  to  penalties 
for  remaining  in  the  combination ;  if  it  did  not, 
he  would  be  punishable  for  not  keeping  his  to 
bacco  in  the  pool.  He  was  thus  bound  to  ascer 
tain  the  "real  value" ;  to  determine  his  conduct 
not  according  to  the  actualities  of  life,  or  by  ref 
erence  to  knowable  criteria,  but  by  speculating 
upon  imaginary  conditions  and  endeavouring  to 
conjecture  what  would  be  the  value  under  other 
and  so-called  normal  circumstances  with  fair 
competition,  eliminating  the  abnormal  influence 
of  the  combination  itself,  and  of  all  other  like 
combinations,  and  of  still  other  combinations 
which  these  were  organised  to  oppose.  The 
objection  that  the  statute,  by  reason  of  its  un 
certainty,  was  fundamentally  defective,  was  as 
available  to  Collins  as  it  was  to  the  Harvester 
Company. 

1  International  Harvester  Company  vs.  Kentucky  (234  U.  S. 
Keports,  page  216). 


RESTRAINT  OF  TRADE  179 

The  instance  of  variance  from  the  views  of 
his  colleagues  in  this  branch  of  the  law  arose 
in  one  of  that  interesting  series  of  cases  in  re 
lation  to  the  right  of  the  manufacturer  to  fix 
the  prices  at  which  his  product  may  be  sold  by 
the  wholesaler,  the  retailer,  and  other  vendors. 
In  Dr.  Miles  Medical  Company  against  Park  & 
Sons  Company*  the  manufacturer  of  a  proprie 
tary  medicine,  prepared  pursuant  to  a  secret 
but  unpatented  formula  and  sold  with  distinc 
tive  labels,  packages  and  trade-marks,  sought 
to  maintain  certain  prices  fixed  by  it  for  all 
sales  of  its  products,  at  either  wholesale  or  re 
tail.  This  result  was  accomplished  through  so- 
called  "restrictive  agreements.''  The  Court 
held,  through  an  opinion  prepared  by  Justice 
Hughes,  that  both  at  common  law  and  under 
the  Sherman  Act,  agreements  or  combinations 
between  dealers,  having  for  their  sole  purpose 
the  destruction  of  competition  and  the  fixing  of 
prices,  are  injurious  to  the  public  interest  and 
void,  and  added: 

The  complainant's  plan  falls  within  the  prin 
ciple  which  condemns  contracts  of  this  class. 
It,  in  effect,  creates  a  combination  for  the  pro 
hibited  purposes.  No  distinction  can  properly 
be  made  by  reason  of  the  particular  character 
of  the  commodity  in  question.  It  is  not  entitled 
to  special  privilege  or  immunity.  It  is  an  arti 
cle  of  commerce  and  the  rules  concerning  the 

*220  U.  S.  Reports,  page  373. 


180  CHAELES  E.  HUGHES 

freedom  of  trade  must  be  held  to  apply  to  it. 
Nor  does  the  fact  that  the  margin  of  freedom 
is  reduced  by  the  control  of  production  make 
the  protection  of  what  remains,  in  such  a  case, 
a  negligible  matter.  And  where  commodities 
have  passed  into  the  channels  of  trade  and  are 
owned  by  dealers,  the  validity  of  agreements  to 
prevent  competition  and  to  maintain  prices  is 
not  to  be  determined  by  the  circumstances 
whether  they  were  produced  by  several  manu 
facturers  or  by  one,  or  whether  they  were  pre 
viously  owned  by  one  or  by  many.  The  com 
plainant  having  sold  its  product  at  prices  satis 
factory  to  itself,  the  public  is  entitled  to  what 
ever  advantage  may  be  derived  from  competi 
tion  in  the  subsequent  traffic. 

In  Henry  Company  against  Dick  Company* 
however,  Justice  Hughes  found  himself  in  a 
minority  of  the  Court,  along  with  Chief  Justice 
White  and  Justice  Lamar.  This  case  involved, 
not  a  proprietary  medicine,  an  unpatented  ar 
ticle,  or  a  secret  formula,  but  a  rotary  mimeo 
graph  machine  covered  by  letters  patent. 
Neither  the  patent  on  the  machine,  nor  any  in 
dependent  patents,  covered  the  ink,  stencil 
paper,  or  other  supplies  used  on  or  in  connec 
tion  with  the  mimeograph.  The  Dick  Company, 
owner  of  the  patent  and  manufacturer  of  the 
machine,  sold  one  of  the  mimeographs  to  a  Miss 
Skou.  The  sale  was  complete  and  uncondi 
tional  ;  there  was  no  condition  imposed  affecting 

1 224  U.  S.  Beports,  page  1. 


RESTRAINT  OF  TRADE  181 

the  title  or  the  uses  of  the  machine.  There  was, 
however,  upon  the  machine  what  was  called  a 
"License  Restriction,"  which  recited  that  the 
mimeograph  "may  be  used  only  with  the  stencil 
paper,  ink  and  other  supplies  made  by  the  A.  B. 
Dick  Co."  The  Henry  Company  sold  to  Miss 
Skou  ink  which  could  as  well  be  used  on  the 
Dick  Company  machine.  The  ink  was  not  a  pat 
ented  article,  and  was  not  made  by  the  Dick 
Company.  The  majority  of  the  Court  held  that 
inasmuch  as  the  use  of  the  Henry  ink  by  Miss 
Skou  would  be  a  use  of  the  mimeograph  by  her 
in  a  prohibited  way  and  would  subject  her  to 
liability  to  the  Dick  Company  for  infringement 
of  the  letters-patent  on  the  machine  sold  to  her, 
the  Henry  Company  was  liable  in  damages  to 
the  Dick  Company,  on  the  theory  that  in  aid 
ing  and  abetting  Miss  Skou  in  violating  this 
"license  restriction"  the  Henry  Company  was 
itself  infringing  the  patent  on  a  machine  which 
the  Henry  Company  did  not  own  and  was  not 
using.  The  majority  were  of  the  opinion  that 
the  patent  laws  were  enacted  to  create  the  most 
genuine  of  all  monopolies;  that  this  monopoly 
power  was  granted  to  subserve  a  broad  public 
policy ;  and  that  the  patent  laws  should  be  con 
strued  and  applied  to  give  effect  to  what  Con 
gress  has  thus  far  regarded  as  a  wise  and  bene 
ficial  purpose  in  the  stimulation  of  invention. 

Chief  Justice  White,  with  Justice  Hughes  and 
Justice  Lamar  concurring,  registered  a  spirited 
protest  against  this  departure  from  what  they 


182  CHAELES  E.  HUGHES 

regarded  as  the  salutary  rule  laid  down  by  Jus 
tice  Hughes  in  the  Miles  Medical  Company 
case.  "It  is  not,  as  I  understand  it,  denied," 
declared  the  Chief  Justice,  '  '  that  the  particular 
contract  which  operates  this  result,  if  tested  by 
the  general  law,  would  be  void  as  against  public 
policy.  The  contract,  therefore,  can  only  be 
maintained  upon  the  assumption  that  the  patent 
law  and  the  issue  of  a  patent  is  the  generating 
source  of  an  authority  to  contract  to  procure 
rights  under  the  patent  law  not  otherwise  with 
in  that  law  and  which  could  not  be  enjoyed 
under  the  general  law  of  the  land."  The  idea 
that  the  casual  dealer  who  sold  ink  to  a  jmblic 
stenographer  who  happened  to  own  a  Dick  Com 
pany  mimeograph,  was  infringing  the  patent 
on  the  machine  in  making  the  sale,  if  the  dealer 
knew  the  ink  was  for  use  on  the  mimeograph, 
seemed  untenable,  and  the  empowering  of  the 
Dick  Company  to  dictate  that  no  ink,  stencil 
paper,  and  the  like,  should  be  bought,  by  an 
owner  of  the  Dick  machine,  from  any  one  except 
the  Dick  Company,  seemed  subversive  of  public 
policy.  Against  the  judicial  sanction  of  this 
form  of  monopoly  control  through  giving  effect 
to  the  "license  restriction"  against  the  use  of 
any  incidental  materials  except  those  manufac 
tured  or  sold  by  the  manufacturer  of  the  ma 
chine,  the  minority  opinion  is  a  very  earnest 
plea. 

The  pendulum  of  decision  soon  swung  strik 
ingly  in  the  other  direction.     The  Dick  Com- 


RESTRAINT  OF  TRADE  183 

pany  case  had  been  argued  in  October,  1911, 
after  the  death  of  Justice  Harlan  and  during 
the  absence  of  Justice  Day.  Application  for 
re-hearing  was  made,  in  which  the  Attorney- 
General  of  the  United  States  and  others  asked 
leave  to  intervene,  but  a  re-hearing  was  denied. 
The  following  Spring  the  Court  heard  and  de 
cided  the  case  of  Bauer  &  Cie  v.  O'Donnell?- 
the  so-called  "Sanatogen  price-cutting  case." 
In  this  case  it  appeared  that  O'Donnell  was 
proprietor  of  a  retail  drug  store  in  Washing 
ton.  He  bought  of  the  Bauer  Company  pack 
ages  of  Sanatogen,  which  bore  the  following: 

Notice  to  Retailers.  This  size  package  is  li 
censed  by  us  for  sale  and  use  at  a  price  not 
less  than  one  dollar  ($1.00).  Any  sale  in  viola 
tion  of  this  condition,  or  use  when  so  sold,  will 
constitute  an  infringement  of  our  patent.  .  .  . 
A  purchase  is  an  acceptance  of  this  con 
dition.  .  .  . 

0  'Donnell  sold  these  packages  at  retail  at  less 
than  a  dollar,  and  when  the  Bauer  Company  re 
fused  to  supply  him  further,  he  bought  from 
jobbers  and  went  on  selling  at  such  price  as  he 
saw  fit,  and  said  he  proposed  to  continue  doing 
that.  The  Court  of  Appeals  for  the  District 
of  Columbia  asked  the  Supreme  Court  whether 
the  acts  of  this  retail  druggist  constituted  an 
infringement  of  the  Sanatogen  patent. 

Justice  Day  had  now  returned  to  the  bench, 
and  wrote  the  opinion  of  the  Court.  Justice 

*229  U.  S.  Keports,  page  1. 


184  CHAELES  E.  HUGHES 

Pitney  had  meanwhile  taken  his  seat  as  suc 
cessor  of  Justice  Harlan.  Justices  Lurton,  Mc- 
Kenna,  Holmes,  and  Van  Devanter,  who  had 
constituted  the  majority  in  the  Dick  Company 
case,  found  themselves  now  in  a  minority.  Jus 
tice  Hughes,  who,  with  Chief  Justice  White  and 
Justice  Lamar,  had  dissented  from  the  Dick 
Company  decision,  joined  with  them  and  Jus 
tices  Day  and  Pitney  in  returning  a  negative 
answer  to  the  question  certified.  The  Dick  Com 
pany  decision  was  now  at  .least  ostensibly  ex 
plained  by  calling  attention  to  the  fact  that  "it 
was  expressly  stated  in  the  opinion  that  the  ma 
chine  was  sold  at  cost  or  less  and  that  the  pat 
entee  depended  on  the  profit  realised  from  the 
sale  of  the  non-patented  articles  to  be  used  with 
the  machine  for  the  profit  which  he  expected 
to  realise  from  his  invention. ' '  In  any  event,  a 
majority  of  the  Court,  with  Justice  Hughes  con 
curring,  now  held  that  a  patentee  might  not  by 
notice  limit  the  price  at  which  retailers  might 
make  future  sales  of  the  patented  article,  at 
least  as  against  a  retailer  who  buys  the  pat 
ented  article  from  jobbers  who  paid  to  the  pat 
entee  the  full  wholesale  price  for  the  article 
sold.  The  Court  also  held  that  where  the  trans 
fer  of  the  patented  article  is  full  and  complete, 
an  attempted  reservation  of  the  right  to  fix  the 
price  at  which  the  article  itself  may  be  sold  by 
the  vendee  is  not  in  any  sense  a  license  for 
qualified  use  by  the  vendee,  but  an  attempt  un 
duly  to  extend  the  right  to  vend  the  patented 


EESTRAINT  OF  TRADE  185 

article,  and  is  therefore  futile  under  the  statute. 
The  passing  of  the  title  to  the  purchaser  was 
said  to  place  the  article  beyond  the  limits  of  the 
monopoly  secured  by  the  patent  laws. 

Justice  Hughes'  outlook  upon  business  ques 
tions  brought  before  the  Court  was  strikingly 
direct  and  cognate  to  disclosed  facts.  Where 
"  there  is  no  rule  of  public  policy  which  denies 
effect  to  the  expressed  intention "  of  the  par 
ties,  he  declared,1  and  "the  matter  lies  within 
the  range  of  permissible  agreement,  the  highest 
public  policy  is  found  in  the  enforcement  of  the 
contract  which  was  actually  made. ' '  "It  was  not 
the  purpose  or  effect  of  the  copyright  law  to  ren 
der  secure  the  fruits  of  piracy, ' '  was  his  concise 
method  2  of  forestalling  the  claim  of  the  pro 
prietors  of  a  "piratical  composition"  to  the 
protection  of  the  statute  as  against  the  rightful 
owners.  "It  cannot  be  supposed  that  Congress 
contemplated  such  a  disregard  of  the  facts  of 
trade,  and  such  a  departure  from  the  policy  of 
former  tariff  legislation, "  said  he,3  "as  would 
be  involved  in"  such  a  construction  of  the  Tar 
iff  Act  as  was  contended  for  by  one  of  the  par 
ties  before  the  Court  in  a  case  involving  the 
status  of  "drilled  pearls."  Recognised  trade 
usages  were  given  force  and  effect,  when  con 
travening  no  fundamentals  of  public  policy.  In 

1  Santa  Fe  Ey.  Co.  vs.  Grant  Bros.  (228  U.  S.  Eeports,  page 
177). 

2  Ferris  vs.  Frohman  (223  U.  S.  Eeports,  page  424). 
8  U.  S.  vs.  Citroen  (223  U.  S.  Eeports,  page  407). 


186  CHARLES  E.  HUGHES 

Taney  against  Penn  Bank,1  where  established 
practices  of  the  distillers'  business  were  chal 
lenged,  he  replied: 

The  fundamental  objection  is  that  the  custom, 
to  which  the  entire  trade  is  adjusted,  is  op 
posed  to  public  policy.  But  we  know  of  no 
ground  for  thus  condemning  honest  transac 
tions  which  grow  out  of  the  recognised  neces 
sities  of  a  lawful  business.  The  case  is  not  one 
where  credit  may  be  assumed  to  be  given  upon 
the  faith  of  the  ostensible  ownership  of  goods 
in  the  debtor's  possession.  Every  one  dealing 
with  distillers  is  familiar  with  the  established 
practice  in  accordance  with  which  spirits  are 
held  in  store,  under  governmental  control,  and 
are  transferred  by  the  delivery  of  such  docu 
ments  as  we  have  here.  There  is  no  warrant 
for  saying  that  the  creditors  are  misled  by 
delusive  appearances.  The  usage  serves  a  fair 
purpose  and  there  is  no  public  policy  which  re 
quires  that  the  trade  should  be  thrown  into  dis 
order  by  a  refusal  to  uphold  it. 

In  enacting  the  Trade-Mark  Act  of  1905, 
"it  was  not  the  intention  of  Congress,"  as  in 
terpreted  by  Justice  Hughes,  "thus  to  provide 
for  a  barren  notice  of  ineffectual  claim,  but  to 
confer  definite  rights."  In  Thaddeus  Davids 
Company  against  Davids,2  the  complainant 
commonly  put  its  mark  "DAVIDS"  promi 
nently  at  the  top  of  its  labels.  The  defendants, 

1  232  U.  S.  Eeports,  page  174. 
1  233  U.  S.  Keports,  page  461, 


RESTRAINT  OF  TRADE  187 

in  the  same  position  on  its  labels,  developed  a 
coincident  custom  of  placing  the  designation*  '  C. 
I.  Davids. "  At  the  bottom  of  their  label,  the 
defendants  placed  "DAVIDS  MFG.  CO."  The 
use  of  the  name  in  this  manner  seemed  in  fact 
to  be  a  mere  simulation  of  the  complainant's 
mark  which  it  had  duly  registered;  it  consti 
tuted  a  '  '  colourable  imitation ' '  within  the  mean 
ing  of  the  Act.  The  decree  of  the  Circuit  Court 
accordingly  restrained  the  defendants  from  the 
use  of  the  words  "Davids  Manufacturing  Com 
pany  "  and  from  the  use  of  the  word  "Davids" 
at  the  top  of  their  labels,  in  connection  with  the 
business  of  making  and  selling  inks. 

In  sustaining  this  action  of  the  lower  Court, 
Justice  Hughes  said : 

In  the  case,  therefore,  of  marks  consisting  of 
names  or  terms  having  a  double  significance, 
and  being  susceptible  of  legitimate  uses  with 
respect  to  their  primary  sense,  the  reproduc 
tion,  copy  or  imitation  which  constitutes  in 
fringement  must  be  such  as  is  calculated  to  mis 
lead  the  public  with  respect  to  the  origin  or 
ownership  of  the  goods  and  thus  to  invade  the 
right  of  the  registrant  to  the  use  of  the  name  or 
term  as  a  designation  of  his  merchandise.  This 
we  conceive  to  be  the  meaning  of  the  statute. 
It  follows  that  where  the  mark  consists  of  a 
surname,  a  person  having  the  same  name  and 
using  it  in  his  own  business,  although  dealing  in 
similar  goods,  would  not  be  an  infringer,  pro 
vided  that  the  name  was  not  used  in  a  manner 


188  CHARLES  E.  HUGHES 

tending  to  mislead  and  it  was  clearly  made  to 
appear  that  the  goods  were  his  own  and  not 
those  of  the  registrant.  This  is  not  to  say  that, 
in  this  view,  the  case  becomes  one  simply  of 
unfair  competition,  as  that  category  has  been 
defined  in  the  law;  for,  whatever  analogy  may 
exist  with  respect  to  the  scope  of  protection  in 
this  class  of  cases,  still  the  right  to  be  protected 
against  an  unwarranted  use  of  the  registered 
mark  has  been  made  a  statutory  right,  and  the 
courts  of  the  United  States  have  been  vested 
with  jurisdiction  of  suits  for  infringement,  re 
gardless  of  diversity  of  citizenship.  Moreover, 
in  view  of  this  statutory  right,  it  could  not  be 
considered  necessary  that  the  complainant  in 
order  to  establish  infringement  should  show 
wrongful  intent  in  fact  on  the  part  of  the  de 
fendant,  or  facts  justifying  the  inference  of 
such  an  intent.  Having  duly  registered  under 
the  act,  the  complainant  would  be  entitled  to 
protection  against  any  infringing  use;  but,  in 
determining  the  extent  of  the  right  which  the 
statute  secures  and  what  may  be  said  to  con 
stitute  an  infringing  use,  regard  must  be  had, 
as  has  been  said,  to  the  nature  of  the  mark  and 
its  secondary,  as  distinguished  from  its  pri 
mary,  significance. 

The  distinction  between  permissible  and  pro 
hibited  uses  may  be  a  difficult  one  to  draw  in 
particular  cases  but  it  must  be  drawn  in  order 
to  give  effect  to  the  act  of  Congress.  That  the 
distinction  may  readily  be  observed  in  practice 
is  apparent.  In  this  case,  for  instance,  if  the 
defendants  had  so  chosen,  they  could  have 
adopted  a  distinct  mark  of  their  own,  which 


RESTRAINT  OF  TRADE  189 

would  have  served  to  designate  their  inks  and 
completely  to  distinguish  them  from  those  of 
the  complainant.  It  was  not  necessary  that,  in 
exercising  the  right  to  use  their  own  name  in 
trade,  they  should  imitate  the  mark  which  the 
complainant  used,  and  was  entitled  to  use  under 
the  statute,  as  a  designation  of  its  wares;  or 
that  they  should  use  the  name  in  question  upon 
their  labels  without  unmistakably  differenti 
ating  their  goods  from  those  which  the  com 
plainant  manufactured  and  sold. 

Justice  Hughes'  outlook  upon  business  prob 
lems  would  seem  to  be  four-square  with  his 
declaration  of  1908: 

It  is  the  function  of  law  to  define  and  punish 
wrong-doing,  and  not  to  throttle  business.  In 
the  fields  of  industrial  activity  the  need  is  that 
trade  should  be  fair;  that  unjust  discrimina 
tions  and  illegal  allowances  giving  preferential 
access  to  markets  should  *be  prevented;  that 
coercive  combinations  and  improper  practices 
to  stifle  competition  should  be  dealt  with  re 
gardless  of  individuals;  but  that  honest  indus 
try,  obtaining  success  upon  its  merits,  denying 
no  just  opportunity  to  its  competitors,  should 
net  be  put  under  prohibitions  which  mingle  the 
innocent  and  the  guilty  in  a  common  condemna 
tion. 

The  line  of  progress  lies  not  in  arbitrary  ac 
tion  but  in  securing  suitable  publicity  and  su 
pervision,  and  by  accurate  definition  of  wrongs 
and  the  infliction  of  proper  punishment.  The 
processes  of  justice  may  be  slower  and  more 


190  CHARLES  E.  HUGHES 

laborious;  but  if  we  desert  the  lines  of  sober 
ness  and  fair  play  to  get  quick  results  through 
arbitrary  interferences  with  trade,  we  shall  find 
that  such  short  cuts  lead  only  to  disaster. 


CHAPTER   XI 

THE  CASE  OF  LEO  M.  FKANK  AND  A  PUZZLING  QUES 
TION  OF   NATIONAL  EESPONSIBILITY 

OCCASIONALLY  there  comes  to  that  august 
chamber  in  the  Capitol  a  cause  on  fire  with  the 
heat  of  racial  or  social  controversy — a  cause  in 
which  men's  deepest  feelings  have  been  aroused, 
public  opinion  has  been  sharply  aligned,  and 
elemental  forces  of  prejudice  and  passion  have 
entered  an  atmosphere  where  should  prevail 
only  impersonal  arbitrament  under  law.  At 
such  a  time  and  in  such  a  cause,  it  becomes  one 
of  the  great  stabilising  prerogatives  of  our 
revered  tribunal  to  restore  to  the  final  determi 
nation  of  the  case  that  perfect  fairness,  that 
assurance  of  freedom  from  outside  influence, 
and  that  deep  regard  for  the  substance  of  right 
and  the  fundamentals  of  fair  trial,  which  are 
the  heritage  of  Anglo-Saxon  jurisprudence  and 
the  high  privilege  of  every  person  accused  of 
crime  in  an  American  State.  In  the  impressive 
presence  of  the  Nation's  Court  and  in  the  con 
templation  of  all  it  has  typified  in  the  imperish 
able  traditions  of  the  Republic,  the  voices  of 
tumult  and  antagonism  are  stilled,  and  the  ran 
cour  of  the  city  street  and  countryside  gives  way 

191 


192  CHARLES  E.  HUGHES 

to  the  reasoned  impartiality  of  a  law-governed 
Court.  Passion  and  prejudice  may  have  might 
ily  muddled  the  facts  and  the  issues;  public 
opinion  may  have  found  itself  unable  to  see 
truly  or  think  clearly,  in  judging  of  the  merits 
of  the  bitter  controversy;  yet  amid  such  a  set 
ting  of  the  cause  before  it,  the  Supreme  Court 
performs  one  of  its  most  valuable  functions  as 
an  expert  interpreter  and  aid  of  the  ultimate 
consensus  of  public  opinion,  through  a  clear  and 
patient  statement  of  the  facts,  a  fair  demarca 
tion  of  the  real  issues,  and  a  resolute  re-formu 
lation  of  the  applicable  essentials. 

Such  a  controversy  was  presented  by  the  ap 
peal  to  the  Supreme  Court  from  the  refusal  of 
the  United  States  District  Court  for  the  North 
ern  District  of  Georgia  to  grant  or  hear  and 
try  the  writ  of  habeas  corpus  for  which  appli 
cation  was  made  in  behalf  of  Leo  M.  Frank,  a 
former  resident  of  New  York  City,  who  had 
been  convicted  in  the  Georgia  State  Courts  of 
the  murder  of  a  girl  of  tender  years,  employed 
in  an  Atlanta  pencil  factory,  of  which  he  was 
superintendent.  The  resources  of  appeal  and 
motions  for  a  new  trial  had  been  exhausted  in 
behalf  of  the  accused,  so  far  as  the  State  Courts 
were  concerned,  and  the  regularity  of  the  pro 
ceedings  incident  to  his  trial  and  conviction 
had  been  in  all  respects  sustained.  The  Su 
preme  Court  of  the  United  States  was  not  unan 
imous  in  its  approval  of  the  action  of  the  United 


THE  CASE  OF  LEO  M.  FRANK    193 

States  District  Judge,  in  refusing  the  appli 
cation  for  the  writ  without  the  taking  of  testi 
mony  to  ascertain  the  truth  or  falsity  of  the  seri 
ous  allegations  of  the  petition;  Justice  Holmes 
and  Justice  Hughes  were  in  fact  constrained  to 
dissent  from  the  prevailing  view;  but  no  one 
can  read  or  re-read  the  majority  and  minority 
opinions  in  this  case  1  without  gaining  a  higher 
respect  for  the  Court  which  DeTocqueville  said, 
eighty-one  years  ago,  was  "at  the  head  of  all 
known  tribunals." 

The  issue  before  the  Supreme  Court  was  not 
whether  Frank  was  innocent  or  guilty  of  mur 
der,  or  whether  he  should  be  sentenced  to  death 
or  set  free;  No  one  denied  that  these  matters 
were  to  be  decided,  in  all  respects,  by  the  State 
Courts  of  Georgia  and  under  its  laws.  The  is 
sue  before  the  Supreme  Court  was  not  whether 
incidents  of  outside  influence  and  manifesta 
tions  of  prevalent  hostility  to  the  accused,  had 
in  fact  brought  about  his  conviction  under  cir 
cumstances  denying  the  fundamentals  of  a  fair 
trial.  The  United  States  District  Judge  had 
taken  no  proof  to  determine  the  truth  or  falsity 
of  these  allegations,  and  the  Supreme  Court,  on 
the  appeal  from  his  refusal  of  the  writ,  was  at 
least  in  no  better  position  to  judge  of  the  facts 
on  that  issue.  The  question  was  not  at  all  one 
of  racial  hostility  to  Frank  in  Georgia,  if  there 
was  such  hostility,  or  of  racial  interference  in 
behalf  of  Frank,  if  there  had  been  such  inter- 

1  Frank  vs.  Mangum  (237  U.  S.  Eeports,  page  309). 


•    194  CHAELES  E.  HUGHES 

ference.  The  Supreme  Court  cut  straight 
through  all  of  these  matters  to  the  question 
necessarily  to  be  decided — a  question  of  the 
most  far-reaching  importance  to  our  whole  ju 
dicial  and  governmental  system,  rising  far 
above  the  eventualities  of  the  fate  of  the  par 
ticular  prisoner  at  the  bar. 

The  actual  point  of  decision  was  whether  the 
United  States  District  Court  was  right,  upon 
the  allegations  of  the  petition  as  to  the  pro 
ceedings  had  with  reference  to  Frank,  in  re 
fusing  to  entertain  the  writ  and  proceed  to  de 
termine  whether  there  was  foundation  in  fact 
for  the  charges  that  Frank  did  not  have  a  trial 
uninfluenced  by  external  pressure  of  angered 
public  opinion.  The  majority  of  the  Supreme 
Court  upheld  this  refusal,  on  the  ground  that 
inasmuch  as  there  was  no  challenge  of  the  con 
stitutionality  or  validity  of  any  statute  under 
which  he  was  tried  and  the  conduct  of  his  trial 
conformed  to  all  the  forms  of  law,  and  inasmuch 
as  the  State  Supreme  Court  had  decided,  after 
having  before  it  evidence  adduced  on  the  sub 
ject,  that  there  was  no  foundation  in  fact  for 
Frank's  charges  of  "mob  influence"  on  the 
jury's  action,  every  requirement  of  a  fair  trial 
and  "due  process"  had  been  met  and  the  Fed 
eral  Courts  had  no  reason  or  right  to  proceed 
to  inquire  into  the  facts  and  consider  substitu 
tion  of  their  judgment  for  that  of  the  highest 
Court  of  the  State  on  the  question  whether  the 


THE  CASE  OF  LEO  M.  FRANK    195 

requirements  of  fair  trial  had  in  fact  been  ful 
filled. 

From  the  majority  determination  Justice 
Holmes  and  Justice  Hughes  dissented,  because 
of  a  belief  that  under  the  "due  process"  clause, 
the  Nation's  Supreme  Court  has  the  ultimate 
responsibility  for  determining  whether  any  per 
son,  of  high  or  low  estate,  of  any  race  or  creed, 
has  in  fact  been  convicted  of  high  crime  under 
circumstances  where  external  influence  made 
the  court-room  proceedings  a  mere  form  and 
shell,  so  far  as  fair  determination  of  actual 
guilt  or  innocence  was  concerned.  They  did  not 
undertake  to  say  that  Frank  had  or  had  not  a 
fair  trial,  or  should  have  a  new  trial ;  they  did 
not  undertake  to  say  whether  the  allegations 
made  in  his  behalf  were  true  or  false ;  they  did, 
however,  believe  that  when  such  an  issue  was 
raised,  it  was  the  solemn  duty  of  the  Federal 
Court  to  take  the  testimony  and  find  out  the 
facts  on  that  issue,  and  that  under  the  great 
guaranties  of  Magna  Charta  and  the  Bill  of 
Eights  as  embodied  in  the  National  Constitu 
tion,  the  determination  of  even  the  highest  State 
Court  cannot  be  accepted  as  in  all  events  final 
and  conclusive  upon  the  question  whether  those 
guaranties  were  actually  infringed.  Said  Jus 
tice  Holmes,  in  ruling  that  the  matter  should 
go  back  to  the  District  Court  to  take  testimony 
on  the  question  whether  there  had  been  im 
proper  influences  pervading  the  trial: 


196  CHARLES  E.  HUGHES 

Mr.  Justice  Hughes  and  I  are  of  opinion  that 
the  judgment  should  be  reversed.  The  only 
question  before  us  is  whether  the  petition  shows 
on  its  face  that  the  writ  of  habeas  corpus  should 
be  denied,  or  whether  the  District  Court  should 
have  proceeded  to  try  the  facts.  The  allega 
tions  that  appear  to  us  material  are  these.  The 
trial  began  on  July  28, 1913,  at  Atlanta,  and  was 
carried  on  in  a  court  packed  with  spectators 
and  surrounded  by  a  crowd  outside,  all  strongly 
hostile  to  the  petitioner.  On  Saturday,  August 
23,  this  hostility  was  sufficient  to  lead  the  judge 
to  confer  in  the*  presence  of  the  jury  with  the 
chief  of  Police  of  Atlanta  and  the  Colonel  of 
the  Fifth  Georgia  Eegiment  stationed  in  that 
city,  both  of  whom  were  known  to  the  jury.  On 
the  same  day,  the  evidence  seemingly  having 
been  closed,  the  public  press,  apprehending 
danger,  united  in  a  request  to  the  Court  that 
the  proceedings  should  not  continue  on  that  eve 
ning.  Thereupon  the  Court  adjourned  until 
Monday  morning.  On  that  morning  when  the 
Solicitor  General  entered  the  court  he  was 
greeted  with  applause,  stamping  of  feet  and 
clapping  of  hands,  and  the  judge  before  begin 
ning  his  charge  had  a  private  conversation  with 
the  petitioner's  counsel  in  which  he  expressed 
the  opinion  that  there  would  be  '  *  probable  dan 
ger  of  violence"  if  there  should  be  an  acquittal 
or  a  disagreement,  and  that  it  would  be  safer 
for  not  only  the  petitioner  but  his  counsel  to 
be  absent  from  Court  when  the  verdict  was 
brought  in.  At  the  judge's  request  they  agreed 
that  the  petitioner  and  they  should  be  absent, 
and  they  kept  their  word.  When  the  verdict 


THE  CASE  OF  LEO  M.  FRANK    197 

was  rendered,  and  before  more  than  one  of 
the  jurymen  had  been  polled  there  was  such  a 
roar  of  applause  that  the  polling  could  not  go 
on  until  order  was  restored.  The  noise  outside 
was  such  that  it  was  difficult  for  the  judge  to 
hear  the  answers  of  the  jurors  although  he  was 
only  ten  feet  from  them.  With  these  specifica 
tions  of  fact,  the  petitioner  alleges  that  the  trial 
was  dominated  by  a  hostile  mob  and  was  noth 
ing  but  an  empty  form. 

We  lay  on  one  side  the  question  whether  the 
petitioner  could  or  did  waive  his  right  to  be 
present  at  the  polling  of  the  jury.  That  ques 
tion  was  apparent  in  the  form  of  the  trial  and 
was  raised  by  the  application  for  a  writ  of 
error ;  and  although  after  the  application  to  the 
full  Court  we  thought  that  the  writ  ought  to 
be  granted,  we  never  have  been  impressed  by 
the  argument  that  the  presence  of  the  prisoner 
was  required  by  the  Constitution  of  the  United 
States.  But  habeas  corpus  cuts  through  all 
forms  and  goes  to  the  very  tissue  of  the  struc 
ture.  It  comes  in  from  the  outside,  not  in  sub 
ordination  to  the  proceedings,  and  although 
every  form  may  have  been  preserved  opens  the 
inquiry  whether  they  have  been  more  than  an 
empty  shell. 

The  argument  for  the  appellee  in  substance 
is  that  the  trial  was  in  a  court  of  competent 
jurisdiction,  that  it  retains  jurisdiction  al 
though,  in  fact,  it  may  be  dominated  by  a  mob, 
and  that  the  rulings  of  the  State  court  as  to 
the  fact  of  such  domination  cannot  be  reviewed. 
But  the  argument  seems  to  us  inconclusive. 
Whatever  disagreement  there  may  be  as  to  the 


198  CHAELES  E.  HUGHES 

scope  of  the  phrase  "due  process  of  law,"  there 
can  be  no  doubt  that  it  embraces  the  funda 
mental  conception  of  a  fair  trial,  with  oppor 
tunity  to  be  heard.  Mob  law  does  not  become 
due  process  of  law  by  securing  the  assent  of  a 
terrorised  jury.  We  are  not  speaking  of  mere 
disorder,  or  mere  irregularities  in  procedure, 
but  of  a  case  where  the  processes  of  justice  are 
actually  subverted.  In  such  a  case,  the  Federal 
court  has  jurisdiction  to  issue  the  writ.  The 
fact  that  the  State  court  still  has  its  general 
jurisdiction  and  is  otherwise  a  competent  court 
does  not  make  it  impossible  to  find  that  a  jury 
has  been  subjected  to  intimidation  in  a  particu 
lar  case.  The  loss  of  jurisdiction  is  not  general 
but  particular,  and  proceeds  from  the  control 
of  a  hostile  influence. 

When  such  a  case  is  presented,  it  cannot  be 
said,  in  our  view,  that  the  State  court  decision 
makes  the  matter  res  judicata.  The  State  acts 
when  by  its  agency  it  finds  the  prisoner  guilty 
and  condemns  him.  We  have  held  in  a  civil 
case  that  it  is  no  defence  to  the  assertion  of  the 
Federal  right  in  the  Federal  court  that  the 
State  has  corrective  procedure  of  its  own — that 
still  less  does  such  procedure  draw  to  itself  the 
final  determination  of  the  Federal  question. 
Simon  v.  Southern  Ry.,  236  U.  S.  115,  122,  123. 
We  see  no  reason  for  a  less  liberal  rule  in  a 
matter  of  life  and  death.  When  the  decision  of 
the  question  of  fact  is  so  interwoven  with  the 
decision  of  the  question  of  constitutional  right 
that  the  one  necessarily  involves  the  other,  the 
Federal  court  must  examine  the  facts.  Kansas 
Southern  Ry.  v.  C.  H.  Albers  Commission  Co., 


THE  CASE  OF  LEO  M.  FRANK    199 

223  U.  S.  573,  591.  Nor.  &  West.  Ey.  v.  Coriley, 
March  8,  1915,  236  U.  S.  605.  Otherwise,  the 
right  will  be  a  barren  one.  It  is  significant  that 
the  argument  for  the  State  does  not  go  so  far 
as  to  say  that  in  no  case  would  it  be  permissible 
on  application  for  habeas  corpus  to  override 
the  findings  of  fact  by  the  State  courts.  It  would 
indeed  be  a  most  serious  thing  if  this  Court 
were  so  to  hold,  for  we  could  not  but  regard  it 
as  a  removal  of  what  is  perhaps  the  most  im 
portant  guaranty  of  the  Federal  Constitution. 
If,  however,  the  argument  stops  short  of  this, 
the  whole  structure  built  upon  the  State  pro 
cedure  and  decisions  falls  to  the  ground. 

To  put  an  extreme  case  and  show  what  we 
mean,  if  the  trial  and  the  later  hearing  before 
the  Supreme  Court  had  taken  place  in  the  pres 
ence  of  an  armed  force  known  to  be  ready  to 
shoot  if  the  result  was  not  the  one  desired,  we 
do  not  suppose  that  this  Court  would  allow  it 
self  to  be  silenced  by  the  suggestion  that  the 
record  showed  no  flaw.  To  go  one  step  further, 
suppose  that  the  trial  had  taken  place  under 
such  intimidation  and  that  the  Supreme  Court 
of  the  State  on  writ  of  error  had  discovered 
no  error  in  the  record,  we  still  imagine  that  this 
court  would  find  a  sufficient  one  outside  of  the 
record,  and  that  it  would  not  be  disturbed  in  its 
conclusion  by  anything  that  the  Supreme  Court 
of  the  State  might  have  said.  We  therefore  lay 
the  suggestion  that  the  Supreme  Court  of  the 
State  has  disposed  of  the  present  question  by 
its  judgment  on  one  side  along  with  the  question 
of  the  appellant's  right  to  be  present.  If  the 
petition  discloses  facts  that  amount  to  a  loss  of 


200  CHAELES  E.  HUGHES 

jurisdiction  in  the  trial  court,  jurisdiction  could 
not  be  restored  by  any  decision  above.  And 
notwithstanding  the  principle  of  comity  and 
convenience  (for  in  our  opinion  it  is  nothing 
more,  United  States  v.  Sing  Tuck,  194  U.  S.  161, 
168),  that  calls  for  a  resort  to  the  local  appel 
late  tribunal  before  coming  to  the  courts  of  the 
United  States  for  a  writ  of  habeas  corpus,  when, 
as  here,  that  resort  has  been  had  in  vain,  the 
power  to  secure  fundamental  rights  that  had 
existed  at  every  stage  becomes  a  duty  and  must 
be  put  forth. 

The  single  question  in  our  minds  is  whether 
a  petition  alleging  that  the  trial  took  place  in 
the  midst  of  a  mob  savagely  and  manif  estly  in 
tent  on  a  single  result,  is  shown  on  its  face  un 
warranted,  by  the  specifications,  which  may  be 
presumed  to  set  forth  the  strongest  indications 
of  the  fact  at  the  petitioner's  command.  This 
is  not  a  matter  for  polite  presumptions;  we 
must  look  facts  in  the  face.  Any  judge  who  has 
sat  with  juries  knows  that  in  spite  of  forms  they 
are  extremely  likely  to  be  impregnated  by  the 
environing  atmosphere.  And  when  we  find  the 
judgment  of  the  expert  on  the  spot,  of  the  judge 
whose  business  it  was  to  preserve  not  only  form 
but  substance,  to  have  been  that  if  one  juryman 
yielded  to  the  reasonable  doubt  that  he  himself 
later  expressed  in  court  as  the  result  of  most 
anxious  deliberation,  neither  prisoner  nor  coun 
sel  would  be  safe  from  the  rage  of  the  crowd,  we 
think  the  presumption  overwhelming  that  the 
jury  responded  to  the  passions  of  the  mob.  Of 
course  we  are  speaking  only  of  the  case  made 
by  the  petition,  and  whether  it  ought  to  be 


THE  CASE  OF  LEO  M.  FRANK    201 

heard.  Upon  allegations  of  this  gravity  in  our 
opinion  it  ought  to  be  heard,  whatever  the  de 
cision  of  the  State  court  may  have  been,  and  it 
did  not  need  to  set  forth  contradictory  evidence, 
or  matter  of  rebuttal,  or  to  explain  why  the 
motions  for  a  new  trial  and  to  set  aside  the  ver 
dict  were  overruled  by  the  State  court.  There 
is  no  reason  to  fear  an  impairment  of  the  au 
thority  of  the  State  to  punish  the  guilty.  We 
do  not  think  it  impracticable  in  any  part  of  this 
country  to  have  trials  free  from  outside  control. 
But  to  maintain  this  immunity  it  may  be  neces 
sary  that  the  supremacy  of  the  law  and  of  the 
Federal  Constitution  should  be  vindicated  in  a 
case  like  this.  It  may  be  that  on  a  hearing  a 
different  complexion  would  be  given  to  the 
judge's  alleged  request  and  expression  of  fear. 
But  supposing  the  alleged  facts  to  be  true,  we 
are  of  opinion  that  if  they  were  before  the  Su 
preme  Court  it  sanctioned  u  situation  upon 
which  the  Courts  of  the  United  States  should 
act,  and  if  for  any  reason  they  were  not  before 
the  Supreme  Court,  it  is  our  duty  to  act  upon 
them  now  and  to  declare  lynch  law  as  little  valid 
when  practised  by  a  regularly  drawn  jury  as 
when  administered  by  one  elected  by  a  mob 
intent  on  death. 

There  is  an  old  maxim  that  "hard  cases  make 
bad  law,"  but  the  manner  of  its  application 
to  the  Frank  case  may  not  be  beyond  perad- 
venture.  Of  course,  it  is  a  startling  sugges 
tion  that,  with  all  the  difficulties  already  en 
countered  in  making  the  processes  of  the  crimi- 


202  CHAELES  E.  HUGHES 

nal  law  prompt  and  efficacious,  there  should  be 
added  the  possibility  of  an  appeal,  in  some  in 
stances,  to  the  Federal  Courts,  through  applica 
tions  for  a  writ  of  habeas  corpus,  with  the  re 
sultant  delay  through  the  time  required  for 
determination  in  the  Federal  jurisdiction.  The 
theory  had  been,  and  remains,  that  unless  the 
statutes  under  which  the  trial  took  place,  or  the 
form  of  proceedings  had,  presented  a  clear  Fed 
eral  question,  challenging  the  validity  of  the 
whole  trial  and  the  conviction  ensuing  thereon, 
the  action  of  the  State  Court  was  unreviewable 
in  the  Federal  Court,  through  writ  of  habeas 
corpus  or  any  other  procedure  which  could  de 
lay  the  execution  of  the  mandate  of  the  State 
Court  without  the  affirmative  action  of  the  Su 
preme  Court  or  one  or  more  Justices  thereof. 
The  question  raised  by  Justices  Holmes  and 
Hughes  may  not,  however,  be  regarded  as  dis 
posed  of  never  to  recur.  The  question  may  per 
haps  be  stated  in  this  direct  and  concrete  way : 
Suppose  John  Jones,  whom  you  knew  well,  in 
stead  of  Leo  Frank,  whom  you  did  not  know  at 
all,  were  convicted  of  murder  and  was  about 
to  be  hanged.  He  had  been  tried  in  the  State 
Court,  and  his  conviction  had  been  confirmed  on 
appeal.  Under  the  Federal  law,  available  to 
every  man  on  equal  terms,  he  was  entitled  to  a 
writ  of  habeas  corpus  if  he  were  held  in  custody 
as  a  result  of  proceedings  violative  of  the  Fed 
eral  Constitution.  Provisions  of  the  Federal 
Constitution  make  it  a  National  duty  that  the 


THE  CASE  OF  LEO  M.  FRANK    203 

Federal  courts  shall  see  to  it  that  nothing  hap 
pening  in  a  State  court  shall  deprive  any  man 
of  his  life  or  his  liberty  without  a  trial  in  fact 
fair.  Suppose  the  State  court,  the  fairness 
of  whose  proceedings  was  challenged,  had  de 
cided  that  its  proceedings  were  in  fact  fair 
and  violated  no  right  under  the  constitutional 
guaranties.  Suppose  John  Jones  then  offered 
to  the  Federal  District  Court  evidence  which,  if 
true,  showed  that  his  trial  was  not  in  fact  fair, 
within  the  meaning  of  the  Federal  Constitu 
tion;  and  Jones  said  that  he  wanted  his  writ 
of  habeas  corpus,  which  the  Federal  statute  said 
he  was  entitled  to  when  he  was  held  in  custody 
under  proceedings  not  amounting  to  the  fair 
trial  guaranteed  by  the  Federal  Constitution. 
Would  you  think  it  would  then  be  the  duty  of 
the  Federal  court  to  go  ahead,  hear  the  other 
side,  take  all  the  facts,  and  then  see  to  it 
whether  Jones'  story  was  true  as  to  what  took 
place  on  the  trial  and  whether  any  requirement 
of  the  Federal  Constitution  had  in  fact  been 
violated,  or  ought  the  Federal  court  just  to  let 
the  decision  of  the  State  court  on  the  question 
stand  as  conclusive  without  hearing  any  of  the 
evidence  on  the  question  of  the  fairness  of  the 
trial? 

Has  the  National  judicial  power  now  no  re 
sponsibility  as  to  what  happens  to  Jones,  if  he 
offers  evidence  and  makes  allegations  which,  if 
true,  would  show  that  he  had  been  convicted 
through  the  withholding  of  the  kind  of  a  trial 


204  CHAELES  E.  HUGHES 

which  the  Constitution  says  the  National  power 
shall  not  permit  any  State  to  deny  to  any  man? 
Or  shall  the  Fourteenth  Amendment  be 
amended,  by  action  of  the  States  or  judicial 
construction,  so  as  to  read,  in  effect,  that 

No  State  shall  deprive  any  person  of  life,  lib 
erty  or  property  without  due  process  of  law; 
.  .  .  provided,  however,  that  nothing  herein 
contained  shall  be  construed  to  require  or  au 
thorise  the  National  judicial  power  to  take  any 
action  to  prevent  a  State  from  depriving  a  per 
son  of  life  or  liberty  without  a  fair  trial,  if  the 
State  shall  have  itself  determined  that  a  fair 
trial  was  had. 

That  is  a  query  rather  more  far-reaching 
than  the  fate  of  your  friend  Jones — or  Leo  M. 
Frank. 


CHAPTER  XII 

COMMUNAL  PEOPEETY  AND  EELIGIOUS  OEDEES 

IN  determining  an  action  brought  by  the  Or 
der,  of  St.  Benedict  of  New  Jersey  against  one 
Steinhauser,1  administrator  of  the  estate  of  a 
deceased  member  of  the  Order,  the  Supreme 
Court,  through  Justice  Hughes,  drew  clearly 
the  distinction  between  ecclesiastical  require 
ments  and  civil  rights  and  laid  down  a  broad 
doctrine  as  to  the  lawfulness  of  communal 
agreements  such  as  those  on  which  have  been 
based  a  considerable  number  of  co-operative 
communities,  in  the  United  States  and  abroad. 

The  complainant  in  the  case  was  The  Order 
of  St.  Benedict  of  New  Jersey,  a  corporation 
of  that  State.  'This  Order  was  a  monastic 
brotherhood,  established  at  Subacio,  Italy,  by 
St.  Benedict  in  the  early  part  of  the  sixth  cen 
tury.  It  was  brought  to  America  in  1846.  One 
of  the  distinctive  features  of  the  Order  is  the 
obedience  of  its  members  to  what  is  known  as 
"The  Rule  of  St.  Benedict,"  a  collection  of 
mandates  enjoining  obedience,  stability,  chas 
tity  and  poverty.  In  New  Jersey  the  brother 
hood  was  incorporated,  in  1868,  by  special  act 

1 234  U.  S.  Reports,  page  640. 
205 


206  CHARLES  E.  HUGHES 

of  the  Legislature,  and  therefore,  as  the  opinion 
of  the  Court  indicated,  at  the  outset : 

"We  are  not  concerned  in  the  present  case  with 
any  question  of  ecclesiastical  requirement  or 
monastic  discipline.  The  question  is  solely  one 
of  civil  rights.  The  claim  in  suit  rests  upon  the 
Constitution  of  the  complainant  corporation, 
and  the  obligations  inherent  in  membership. 

The  incorporators  of  the  New  Jersey  corpor 
ation  were  described  as  being  "a  society  of  re 
ligious  men  living  in  community  and  devoted  to 
charitable  works  and  the  education  of  youth." 
Pursuant  to  the  charter  of  incorporation,  the 
Order  adopted  a  Constitution,  which  provided 
that  membership  was  "lost  at  once": 

1.  By  being  dismissed  according  to  the  dis 
ciplinary  statutes  of  the  Order  of  Benedict  of 
New  Jersey.  .  .  . 

2.  By  voluntarily  leaving  the  Order  for  any 
purpose  whatsoever. 

3.  By  joining  any  other  order  or  secret  so 
ciety  or  any  other  religious  denominations. 

The  Constitution  also  provided  that 

Since  the  Order  of  St.  Benedict  of  New  Jer 
sey  is  solely  a  charitable  institution,  the  real 
estate  of  the  said  Order  and  the  individual 
earnings  of  its  members  are  and  must  be  con 
sidered  as  common  property  of  the  Order.  .  .  . 


COMMUNAL  PROPERTY          207 

It  is  therefore  agreed  upon  by  all  the  members 
of  the  said  Order  of  St.  Benedict  of  New  Jersey 
that  no  member  can  or  will  claim  at  any  time 
or  under  any  circumstances  more  than  their 
decent  support  for  the  time  for  which  they  are 
members  of  the  Charter  of  the  Order  of  St. 
Benedict  of  New  Jersey  and  no  further. 

Augustin  Wirth  was  a  Bavarian,  who  took 
the  solemn  vows  of  the  Order  in  Pennsylvania 
in  1852,  and  was  ordained  to  the  priesthood. 
In  1888  he  became  a  member  of  the  Order  in 
New  Jersey  and  remained  in  membership  until 
his  death.  From  time  to  time  he  published 
books  on  religious  subjects.  His  contracts  with 
publishers  were  made,  and  the  copyrights  ob 
tained  by  him,  under  the  name  of  "Augustin 
Wirth,  0.  S.  B."  After  his  death  the  New 
Jersey  corporation  claimed  the  royalties  on  the 
books  and  personal  property  consisting  chiefly 
of  the  proceeds  of  sales  of  the  books.  The  Su 
preme  Court,  applying  to  the  affairs  of  the  cor 
poration  and  the  agreements  of  its  members 
the  same  standards  which  would  and  should  be 
applied  in  a  case  involving  the  rights  of  any 
other  corporation,  held  that 

According  to  the  principles  of  the  complain 
ant's  organisation,  Father  Wirth  was  not  en 
titled  to  retain  for  his  own  benefit  either  the 
moneys  which  he  received  for  his  services  in  the 
various  churches  with  which  he  was  connected 
or  those  which  he  derived  from  the  sale  of  his 
books.  By  the  explicit  provision  of  the  Consti- 


208  CHARLES  E.  HUGHES 

tution  of  the  complainant,  it  was  a  necessary 
consequence  of  his  continued  membership,  that 
his  gains — from  whatever  source — belonged 
to  it. 

Thus  was  a  very  simple  question  of  the  con 
struction  of  corporate  by-laws  succinctly  an 
swered.  Father  Wirth's  administrator  con 
tended,  however,  that  the  obligation  embodied 
in  the  Constitution  of  the  New  Jersey  corpora 
tion  was  one  which  the  Courts  should  not  en 
force.  To  this  the  opinion  of  a  unanimous 
Court,  prepared  by  Justice  Hughes,  replied : 

We  are  thus  brought  to  the  question  whether 
the  requirement,  which  lies  at  the  foundation 
of  this  suit,  is  void  as  against  public  policy; 
that  is,  whether,  by  reason  of  repugnance  to  the 
essential  principles  of  our  institutions,  the  ob 
ligation  though  voluntarily  assumed,  and  the 
trust  arising  from  it,  cannot  be  enforced.  In 
support  of  this  view,  it  seems  to  be  premised 
that  a  member  of  the  Order  can  be  absolved 
from  his  vows  only  by  the  action  of  the  Head  of 
the  Church  and  that  unless  the  requisite  dis 
pensation  is  thus  obtained  the  member  is  bound 
for  life  in  temporal,  as  well  as  in  spiritual,  af 
fairs.  This,  it  is  said,  is  the  necessary  import 
of  testimony  given  by  the  Abbot.  It  is  thus  as 
sumed  that  the  vows  in  connection  with  the 
"Rule"  bind  the  member  in  complete  servitude 
to  the  Order  for  life  or  until  the  Head  of  the 
Church  absolves  him  from  his  obligations ;  and 
it  is  concluded  that  an  agreement  for  such  a  sur- 


COMMUNAL  PROPERTY  209* 

render,  being  opposed  to  individual  liberty  and 
to  the  inherent  right  of  every  person  to  acquire 
and  hold  property,  is  unenforceable  in  the  civil 
courts  and  cannot  form  the  basis  for  an  equita 
ble  title  in  the  complainant. 

This  argument,  we  think,  disregards  the 
explicit  provision  of  the  complainant's  Con 
stitution  as  to  voluntary  withdrawal.  It  over 
looks  the  distinction  between  civil  and  ecclesi 
astical  rights  and  duties ;  between  the  Order  of 
St.  Benedict  of  New  Jersey,  a  corporation  of 
that  State,  and  the  monastic  brotherhood  sub 
ject  to  church  authority;  between  the  obliga 
tion  imposed  by  the  corporate  organisation  and 
religious  vows. 

As  we  have  said,  the  question  here  is  not  one 
of  canon  law  or  ecclesiastical  polity.  The  re 
quirement  of  complainant's  Constitution  must 
be  read  according  to  its  terms  and  its  validity 
must  be  thus  determined.  Granted  that  it  is  to 
be  examined  in  the  light  of  that  to  which  it 
refers,  still,  obligations  which  are  inconsistent 
with  its  expressed  provisions  cannot  be  im 
ported  into  it.  This  Constitution,  as  already 
stated,  definitely  provides:  "Membership  is 
lost  at  once :  2.  By  voluntarily  leaving  the  Or 
der  for  any  purpose  whatsoever."  (Section 
XL)  This  language  cannot  be  taken  to  mean 
other  than  what  it  distinctly  says.  So  far  as  the 
corporation,  and  the  civil  rights  and  obligations 
incident  to  membership  therein,  are  concerned, 
it  leaves  no  doubt  that  the  member  may  volun 
tarily  leave  the  Order  at  any  time.  His  mem 
bership  in  the  corporation,  and  the  obligation 
lie  assumes,  are  subject  to  that  condition.  If 


*210  CHABLES  E.  HUGHES 

he  severs  his  connection  with  the  corporation, 
it  cannot  be  heard  to  claim  any  property  he 
may  subsequently  acquire.  His  obligation  runs 
with  his  membership  and  the  latter  may  be 
terminated  at  wilL 

With  this  privilege  of  withdrawal  expressly 
recognised,  we  are  unable  to  say  that  the  agree 
ment — expressed  in  Sec.  XII  of  the  complain 
ant's  Constitution — that  the  gains  and  acqui 
sitions  of  members  shall  belong  to  the  corpora 
tion,  must  be  condemned.  These  go  to  the  cor 
poration  in  exchange  for  the  privilege  of  mem 
bership  and  to  further  the  common  purpose  to 
which  the  members  are  devoted.  No  consti 
tutional  right  is  invaded  and  no  statutory  re 
striction  is  transgressed.  The  legislature  of 
New  Jersey,  which,  subject  to  constitutional  in 
hibition,  is  the  arbiter  of  the  public  policy  of 
that  State,  granted  the  charter  by  special  act 
to  the  Benedictine  Society  of  "religious  men 
living  in  community, ' '  and  it  cannot  be  said  that 
the  Constitution  adopted  by  the  Order  was  re 
pugnant  to  the  charter  provisions  or  exceeded 
the  authority  plainly  intended  to  be  conferred. 
It  would  seem  to  be  clear  that  the  obligation 
assumed  instead  of  being  opposed  to  the  public 
policy  of  the  State  where  it  was  created  was 
directly  sanctioned. 

The  decision  has  also  interesting  social  as 
pects  because  of  its  observations  as  to  the  law 
fulness  of  a  form  of.  agreement  for  living  in 
community  and  holding  all  property  and  income 


COMMUNAL  PROPERTY  211 

in  common.  * '  The  validity  of  agreements  pro 
viding  for  community  ownership, "  declared 
Justice  Hughes,  "with  renunciation  of  individ 
ual  rights  of  property  during  the  continuance 
of  membership  in  the  community,  where  there 
is  freedom  to  withdraw,  has  been  repeatedly 
affirmed. "  The  legal  sanction  for  several  com 
munal  societies,  such  as  the  '  '  Separatists, ' ' 1 
the  "Harmony  Society"  community2  of  Penn 
sylvania,  and  the  "Oneida  Community"3  of 
New  York,  is  set  forth.  Viewing  the  matter 
"solely  as  a  business  undertaking,"  the  Court 
found  nothing  subversive  of  law  or  public  pol 
icy  in  such  a  community  arrangement,  and 
quoted  with  approval  the  New  York  Court  of 
Appeals'  characterisation  of  the  Oneida  Com 
munity,  the  "basic  proposition"  of  which  was 
said  to  be 

.  .  .  the  absolute  and  complete  surrender  of 
the  separate  and  individual  rights  of  property 
of  the  persons  entering  it ;  the  abandonment  of 
all  purely  selfish  pursuits,  and  the  investiture  of 
the  title  to  their  property  and  the  fruits  of  their 
industry  in  the  common  body,  from  which  they 
could  not  afterwards  be  severed  or  withdrawn 
except  by  unanimous  consent.  It  was  fashioned 
according  to  the  Pentecostal  ideal,  that  all  who 

*Goesele  vs.  Bimeler  (14  Howard's  Eeports,  page  589). 

a Schwartz  vs.  Duss  (187  U.  S.  Keports,  page  8). 

*Burt  vs.  Oneida  Community  (137  N.  Y.  Reports,  page  346). 


212  CHARLES  E.  HUGHES 

believed  should  be  together  and  have  all  things 
common.  It  was  intended  to  be  in  fact,  as  they 
frequently  styled  themselves,  but  a  single  fam 
ily  upon  a  large  scale  with  only  one  purse, 
where  self  was  to  be  abjured  and  the  general 
good  alone  considered. 


CHAPTER   XIII 


THE  "SEPAKATE-COACH"  LAW  AND  THE  SLEEPING 

CAR 


CONSTITUTIONAL  aspects  of  the  perennial 
problem  of  equality  in  transportation  accom 
modations  for  the  white  and  African  races,  were 
before  the  Supreme  Court  at  the  end  of  1914, 
in  a  controversy  l  involving  the  so-called  "Sep 
arate-Coach"  law  of  the  State  of  Oklahoma.  A 
day  or  two  before  this  law  was  to  go  into  effect 
five  negro  citizens  of  the  State  applied  to  the 
Federal  courts  for  an  injunction  against  five 
railroad  companies,  to  restrain  th.e  companies 
from  complying  with  the  provisions  of  the  stat 
ute.  They  asked  for  this  on  the  twofold  ground, 
in  substance,  that  its  plan  of  separate,  but  sup 
posedly  equal,  facilities  for  the  two  races,  was 
repugnant  to  the  "commerce  clause"  and  to 
the  Fourteenth  Amendment  of  the  Federal  Con 
stitution.  The  United  States  Circuit  Court  and 
the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit,  which  is  one  of  the  Western  Circuits, 
sustained  demurrers  to  the  bills  filed  by  the 
complainants  and  ruled  adversely  to  their  right 

*McCabe  vs.  AtcUson,  T.  #  S.  F.  Ey.  Co.    (235  U.  S.  Ee- 
ports,   page   151). 

213 


214  CHAELES  E.  HUGHES 

to  stop  the  taking  effect  of  the  statute  upon  the 
allegations  made  by  them.  When  they  brought 
their  complaints  to  the  Supreme  Court,  that 
tribunal  without  dissent  affirmed  the  action  of 
the  courts  below  and  held  that  the  suit  could 
not  be  maintained.  Justice  Hughes  wrote  the 
opinion  of  the  Court,  and  declared  a  result  con 
curred  in  by  all  his  colleagues. 

The  social,  political,  or  ethnological  expedi 
ency  of  the  Oklahoma  "  Separate-Coach "  law, 
of  course,  was  not  passed  upon  by  the  Supreme 
Court  or  written  about  by  Justice  Hughes.  The 
question  before  the  Court  and  before  him  was 
the  legal  and  constitutional  question  of  the  cor 
rectness  of  the  challenge  that  the  statute,  in  its 
tenor  and  practical  workings,  would  impinge 
upon  rights  assured  by  the  Federal  Constitu 
tion.  Members  of  the  Court,  in  passing  upon  a 
statute  enacted  by  a  State,  may  feel  the  measure 
to  be  very  wise  and  salutary,  yet  unconstitu 
tional;  or  they  may  deem  the  measure  to  be 
highly  unwise  and  inexpedient,  yet  unpro- 
•scribed  by  the  fundamental  law.  Questions 
of  expediency  have  to  be  left  to  the  Legis 
latures  and  Governors,  and  questions  of  in 
fringement  of  fundamental  right  have  to  be 
faced,  without  expression  of  independent  judg 
ment  as  to  the  social  wisdom  of  the  meas 
ures  under  consideration.  No  doubt  some 
of  the  members  of  the  Supreme  Court  would 
have  voted  for,  and  others  would  have  voted 
against,  the  "Separate-Coach"  law  had  they 


THE  "SEPARATE-COACH"  LAW  215 

been  sitting,  in  December,  1907,  as  members  of 
the  Oklahoma  Legislature;  but  as  Justices  of 
the  Supreme  Court,  the  men  from  New  York, 
New  Jersey,  Massachusetts,  Ohio,  Wyoming 
and  California  voted  in  unison  with  the  men 
from  Louisiana,  Georgia  and  Tennessee,  in 
holding  that  the  five  negroes  who  started  the 
suit  had  not  made  out  a  case  for  redress  under 
the  Federal  Constitution.  Upon  one  phase  of 
the  provisions  of  the  statute — in  relation  to 
Pullman  and  dining-car  facilities — Justice 
Hughes  reached  a  conclusion  that  the  plan  sanc 
tioned  might  operate  to  deny  to  African  citizens 
the  equal  protection  of  the  laws  and  so  entitle 
persons  actually  aggrieved  to  bring  their  com 
plaints  to  Court.  As  to  this  aspect  of  the  mat 
ter,  Chief  Justice  White  and  Associate  Justices 
Holmes,  Lamar  and  McBeynolds  evidently 
found  themselves  more  fully  in  accord  with  the 
outcome  reached  than  with  the  reasoning,  and 
so  concurred  "in  the  result." 

The  statute  under  attack  required  each  rail 
way  company  to  "  provide  separate  coaches  or 
compartments,  for  the  accommodation  of  the 
white  and  negro  races,  which  separate  coaches 
or  cars"  shall  "be  equal  in  all  points  of  comfort 
and  convenience."  At  passenger  depots,  "sep 
arate  waiting-rooms,"  likewise  with  equal  fa 
cilities,  were  required.  The  statute,  moreover, 
provided  that  the  term  "negro,"  as  used  there 
in,  should  include  every  person  of  African  de 
scent,  as  defined  by  the  State  Constitution,  and 


216  CHARLES  E.  HUGHES 

that  each  compartment  of  a  railway  coach,  "di 
vided  by  a  good  and  substantial  wooden  parti 
tion,  with  a  door  therein,  shall  be  deemed  a 
separate  coach, ' '  within  the  meaning  of  the  law. 

Justice  Hughes  ruled  that,  as  to  the  provi 
sions  above  quoted,  the  statute  gave  the  com 
plainants  no  ground  for  objection  to  its  en 
forcement.  "It  had  been  decided  by  this  Court, 
so  that  the  question  could  no  longer  be  consid 
ered  an  open  one,  that  it  was  not  an  infraction 
of  the  Fourteenth  Amendment  for  a  State  to  re 
quire  separate,  but  equal,  accommodations  for 
the  two  races."  So  far  as  the  Federal  Consti 
tution  is  concerned,  a  State,  through  its  legis 
lature,  may  require,  as  some  States  in  effect 
do,  equal  and  common  facilities  for  the  two 
races,  or  may,  as  some  other  States  do,  require 
equal  and  separate  facilities.  Members  of  the 
African  race  are  entitled  to  address  to  the  Fed 
eral  courts  any  complaint  as  to  distinction  in 
extent  or  quality  of  the  accommodations  af 
forded  the  two  races  on  railroad  trains;  they 
cannot  be  heard  to  complain  to  the  court,  as 
distinguished  from  the  legislature,  of  distinc 
tion  in  identity  of  the  accommodations  afforded 
or  against  separation  in  equal  accommodations. 

This  was  held  in 'the  case  of  Plessy  against 
Ferguson*  cited  in  the  opinion  written  by  Jus 
tice  Hughes.  The  Plessy  case  involved  a  Louis 
iana  statute  which  required  the  carriers  to  pro 
vide  separate  accommodations  for  the  white  and 

1  Plessy  vs.  Ferguson  (163  U.  S.  Eeports,  page  540). 


THE  "SEPARATE-COACH"  LAW  217 

coloured  races.  The  Supreme  Court  not  only 
sustained  the  law  but  also  justified  as  reason 
able  the  distinction  between  the  races  on  ac 
count  of  which  the  statute  was  enacted  and  en 
forced.  The  test  of  the  reasonableness  of  leg 
islation  was  declared  to  be  "the  established 
usages,  customs  and  traditions  of  the  people" 
and  the  "promotion  of  their  comfort  and  the 
preservation  of  public  peace  and  good  order"; 
and  in  the  action  brought  by  one  Chiles  against 
the  Chesapeake  and  Ohio  Railway  Company? 
it  was  held  that  the  railway  companies  them 
selves  had  the  power  to  establish  similar  regula 
tions,  for  a  like  purpose  and  to  secure  like  re 
sults,  and  at  least  in  the  absence  of  Congres 
sional  action  on  the  subject,  could  make  such 
regulations  applicable  to  interstate  as  well  as 
intrastate  traffic.  The  Supreme  Court  in  the 
Chiles  case  added : 

Eegulations  which  are  induced  by  the  general 
sentiment  of  the  community  for  whom  they  are 
made  and  upon  whom  they  operate  cannot  b« 
said  to  be  unreasonable. 

As  to  the  charge  that  the  statute  contravened 
the  "commerce  clause"  of  the  Constitution, 
through  invasion  of  the  interstate  domain  com 
mitted  to  the  exclusive  power  of  Congress,  the 
Court,  in  the  Oklahoma  case,  said : 

1  Chiles  vs.  Chesapeake  $  Ohio  Ey.  Co.  (218  U.  S.  Eeports, 
page  71). 


218  CHARLES  E.  HUGHES 

The  act,  in  the  absence  of  a  different  con 
struction  by  the  State  Court,  must  be  construed 
as  applying  to  transportation  exclusively  intra- 
state  and  hence  did  not  contravene  the  com 
merce  clause  of  the  Constitution. 

This  ruling  was  of  course  made  in  the  light 
of  the  previous  holding  of  the  Supreme  Court 
that  "whether  interstate  passengers  of  one  race 
should,  in  any  portion  of  their  journey,  be  com 
pelled  to  share  their  cabin  accommodations  with 
passengers  of  another  race,  was  a  question  of 
interstate  commerce,  and  to  be  determined  by 
Congress  alone,' yi  and  that  "the  inaction  of 
Congress  was  equivalent  to  the  declaration  that 
a  carrier  could  by  regulations  separate  coloured 
and  white  interstate  passengers."2 

The  Oklahoma  statute  contained,  however,  a 
proviso  that  nothing  in  it  contained  should  be 
construed  to  prevent  railway  companies  "from 
hauling  sleeping  cars,  dining  or  chair  cars  at 
tached  to  their  trains  to  be  used  exclusively 
by  either  white  or  negro  passengers,  separately 
tut  not  jointly."  It  was  contended,  with  a 
great  deal  of  vigour  and  plausibility,  in  behalf 
of  the  railroad  companies  and  the  State  of 
Oklahoma,  that  this  proviso,  based  palpably  on 
the  necessities  of  "through"  traffic,  did  not  by 
its  terms  offend  against  the  rule  of  equal  treat 
ment  which  all  men  have  a  right  to  demand  at 

1  Louisville,  etc.,  Ey.  Co.  vs.  Mississippi  (133  U.  S.  Reports, 
pages  587,  590). 

3  Hall  vs.  De  Cuir  (95  U.  S.  Reports,  485). 


THE  "SEPARATE-COACH"  LAW  219 

the  hands  of  utilities  operating  under  public 
franchises.  It  was  argued  that  this  clause  sanc 
tioned  the  hauling  of  sleeping  cars  and  dining 
and  chair  cars  used  exclusively  and  separately 
by  either  race,  and  that  violation  of  the  rule 
of  equality  in  accommodations  would  take  place 
only  if  the  railway  companies  provided  cars  of 
this  type  and  quality  for  the  exclusive  use  of 
white  passengers  and  yet,  in  the  face  of  consid 
erable  demand,  failed  to  furnish  similar  and 
separate  facilities  for  negro  passengers.  The 
Circuit  Court  and  the  Circuit  Court  of  Appeals 
sustained  this  view,  and  held  that  inasmuch  as 
these  types  of  cars  were,  comparatively  speak 
ing,  luxuries,  it  was  competent  for  the  legisla 
ture  and  the  railway  companies  to  take  into  ac 
count  the  limited  demand  for  such  accommoda 
tions  on  the  part  of  the  African  race,  as  com 
pared  with  the  more  general  demand  on  the 
part  of  the  white  race. 

With  characteristic  instinct  for  the  substance 
rather  than  the  guise  of  things  and  for  the  facts 
as  to  the  way  in  which  a  statutory  provision 
actually  works  rather  than  for  mere  phrase 
ology  which  may  be  employed  to  create  an  ap 
pearance  of  consonance  with  fundamentals,  Jus 
tice  Hughes  was  unable  to  give  sanction  to  this 
reasoning  of  the  lower  Court. 

"It  is  not  questioned,"  said  he,  after  quoting 
the  statute,  "that  the  meaning  of  this  clause  is 
that  the  carriers  may  provide  sleeping  cars, 
dining  cars  and  chair  cars  exclusively  for  white 


220  CHAELES  E.  HUGHES 

persons  and  provide  no  similar  accommodations 
for  negroes.  The  reasoning  is  that  there  may 
not  be  enough  persons  of  African  descent  seek 
ing  these  accommodations  to  warrant  the  out 
lay  in  providing  them.  .  .  .  This  argument  with 
respect  to  volume  of  traffic  seems  to  us  to  be 
without  merit.  It  makes  the  constitutional  right 
depend  upon  the  number  of  persons  who  may  be 
discriminated  against,  whereas  the  essence  of 
the  constitutional  right  is  that  it  is  a  personal 
one.  Whether  or  not  particular  facilities  shall 
be  provided  may  doubtless  be  conditioned  upon 
there  being  a  reasonable  demand  therefor,  but, 
if  facilities  are  provided,  substantial  equality 
of  treatment  of  persons  travelling  under  like 
conditions  cannot  be  refused." 

Justice  Hughes  expressed,  however,  the  opin 
ion  of  the  Court  that  the  allegations  of  the 
complainants  showed  no  discrimination  in  fact 
against  the  constitutional  rights  of  any  of  them, 
and  the  Circuit  Court's  denial  of  injunctive  re 
lief  was  affirmed  without  dissent. 


CHAPTER   XIV 

STANDARDS   OF    OFFICIAL   RESPONSIBILITY   AND    THE 
EFFICIENCY  OF  ADMINISTRATIVE  ADJUSTMENTS 

IN  a  number  of  opinions  prepared  by  Justice 
Hughes  there  seems  to  be  discernible  a  very 
definite  concept  of  the  standards  of  official  dis 
cretion,  duty  and  responsibility,  and  of  the  ex 
pedients  which  make  administrative  mechan 
isms  workable  and  -efficient.  In  the  United 
States  against  Citroen,1  after  laying  down  an 
interpretation  of  certain  puzzling  sections  of 
the  Tariff  Act  of  1897,  in  harmony  with  the 
known  facts  of  the  trade  and  the  policy  em 
bodied  in  former  tariff  legislation,  he  added: 
1 '  Such  an  interpretation  provides  a  simple  and 
workable  test,  permitting  certainty  and  impar 
tiality  in  administration  which  should  pre-em 
inently  characterise  the  operation  of  tariff  laws, 
and  fulfils,  as  we  believe,  the  purpose  of  Con 
gress.''  In  Collins  against  Kentucky?  his 
voice  was  raised  in  condemnation  of  a  penal 
statute  which  "prescribed  no  standard  of  con 
duct  that  it  was  possible  to  know,"  a  statute 
which  "violated  the  fundamental  principles  of 

1 223  U.  S.  Eeports,  page  424. 
a  234  U.  S.  Reports,  page  634. 
221 


222  CHARLES  E.  HUGHES 

justice  .».  .  in  compelling  men  on  peril  of  in 
dictment  to  guess "  as  to  facts  not  ascertain- 
able.  In  the  United  States  against  Smull,1  the 
United  States  District  Court  had  held  that  a 
false  affidavit,  made  before  a  receiver  of  the 
Land  Office,  that  the  applicant  had  not  thereto 
fore  made  any  entry  under  the  homestead  laws, 
did  not  warrant  indictment  of  the  affiant  for  per 
jury,  inasmuch  as  the  taking  of  any  such  oath 
was  not  authorised  or  required  by  any  Act  of 
Congress,  but  only  by  a  regulation  of  the  Land 
Department.  Justice  Hughes  cut  straight 
through  this  claim  by  which  the  maker  of  a  false 
oath  for  the  purpose  of  defrauding  the  Govern 
ment  was  to  go  unpunished ;  he  held  that  know 
ingly  swearing  falsely  to  an  affidavit  required 
by  an  authorised  regulation  of  the  Land  De 
partment  as  fully  sustained  a  charge  of  perjury 
as  though  the  oath  had  been  explicitly  required 
by  the  wording  of  an  Act  of  Congress. 

In  the  United  States  against  Birdsall,2  a  sim 
ilar  edifice  of  circumlocution  had  been  reared 
to  persuade  the  United  States  District  Court 
that  Birdsall  was  not  guilty  of  bribery.  The 
District  Court  let  Birdsall  go  free.  Justice 
Hughes,  on  the  contrary,  gave  efficacy  to  the 
anti-bribery  statute.  He  held  that  "every  ac 
tion  that  is  within  the  range  of  official  duty 
comes  within  the  purview  of "  the  anti-bribery 
sections,  and  that  "to  constitute  it  official  ac- 

1  236  IP.  S.  Reports,  page  405. 
*233  U.  S.  Reports,  page  223. 


OFFICIAL  RESPONSIBILITY       223 

tion,  it  was  not  necessary  that  it  should  be  pre 
scribed  by  statute;  it  was  sufficient  that  it  was 
governed  by  a  lawful  requirement  of  the  de 
partment  under  whose  authority  the  officer  was 
acting.  .  .  .  Nor  was  it  necessary  that  the  re 
quirement  should  be  prescribed  by  a  written 
rule  or  regulation.  It  might  also  be  found  in  an 
established  usage  which  constituted  the  common 
law  of  the  department  and  fixed  the  duties  of 
those  engaged  in  its  activities.  ...  In  numer 
ous  instances,  duties  not  completely  defined  by 
written  rules  are  clearly  established  by  settled 
practice,  and  action  taken  in  the  course  of  their 
performance  must  be  regarded  as  within  the 
provisions  of  the  above-mentioned  statutes 
against  bribery. "  And  Justice  Hughes  was 
one  of  the  Justices  concurring  in  that  classic 
opinion *  sustaining  the  validity  of  President 
Taft's  order  withdrawing  from  public  entry, 
without  Congressional  sanction,  vast  areas  of 
public  lands  on  which  oil  had  been  discovered, 
in  which  the  Court  declared  that 

.  .  .  government  is  a  practical  affair  intend 
ed  for  practical  men.  Both  officers,  lawmakers 
and  citizens  naturally  adjust  themselves  to  any 
long-continued  action  of  the  Executive  Depart 
ment — on  the  presumption  that  unauthorised 
acts  would  not  have  been  allowed  to  be  so  often 
repeated  as  to  crystallise  into  a  regular  prac 
tice.  That  presumption  is  not  reasoning  in  a 

1  U.  8.  vs.  Midwest  Oil  Co.  (236  U.  S.,  459). 


224  CHAELES  E.  HUGHES 

circle  but  the  basis  of  a  wise  and  quieting  rule 
that  in  determining  the  meaning  of  a  statute 
or  the  existence  of  a  power,  weight  should  be 
given  to  the  usage  itself — even  when  the  valid 
ity  of  the  practice  is  the  subject  of  investiga 
tion. 

Perhaps  there  is  an  inkling,  also,  of  an  out 
look  upon  problems  of  discipline  and  depart 
mental  authority  in  the  Army  and  Navy,  in  a 
decision  like  that  in  the  United  States  against 
Ross,1  where  Justice  Hughes  said:  "If  in  the 
practical  judgment  of  the  military  authorities, 
the  efficient  management  of  a  general  hospital 
requires  the  maintenance  of  both  a  telephone 
and  telegraph  office,  we  know  of  no  reason  for 
*  making  a  judicial  determination  based  upon  a 
contrary  assumption.'  Certainly  the  question 
was  one  calling  in  the  first  instance  for  the  prac 
tical  judgment  of  the  Department.  ...  In  the 
conduct  of  an  institution  like  a  general  hos 
pital  .  .  .  there  is  every  reason  for  caution,  and 
for  the  exercise  of  careful  official  judgment. 
.  .  .  We  are  asked  to  overrule  this  depart 
mental  judgment.  .  .  .  We  find  no  basis  for 
such  action."  Justice  Hughes  added  that  the 
Court  was  not  at  liberty  to  do  any  such  thing 
"  unless  there  is  a  clear  abuse  of  the  neces 
sary  official  discretion.  No  such  abuse  is  shown 
here. ' '  Likewise  in  Reaves  against  Ainsworth,2 

1 239  U.  S.  Reports,  page  530. 
a  219  U.  S.  Eeports,  page  296. 


OFFICIAL  RESPONSIBILITY       225 

a  unanimous  Court  declared,  on  a  question  of 
the  retirement  of  an  Army  officer: 

The  courts  have  no  power  to  review.  The 
courts  are  not  the  only  instrumentalities  of 
government.  They  cannot  command  or  regu 
late  the  army.  To  be  promoted  or  to  be  retired 
may  be  the  right  of  an  officer,  the  value  to  him 
of  his  commission,  but  greater  even  than  that 
is  the  welfare  of  the  country,  and,  it  may  be, 
even  its  safety,  through  the  efficiency  of  the 
army.  ...  If  it  had  been  the  intention  of  Con 
gress  to  give  to  an  officer  the  right  to  raise  is 
sues  and  controversies  with  the  board  upon  the 
elements,  physical  and  mental,  of  his  qualifica 
tions  for  promotion  and  carry  them  over  the 
head  of  the  President  to  the  courts,  and  there 
litigated,  it  may  be,  through  a  course  of  years, 
upon  the  assertion  of  error  or  injustice  in  the 
board's  rulings  or  decisions,  such  intention 
would  have  been  explicitly  declared.  The  em 
barrassment  of  such  a  right  to  the  service,  in 
deed  the  detriment  of  it,  may  be  imagined. 

Elsewhere  in  the  same  opinion  the  Court 
said : 

What  is  due  process  of  law  must  be  deter 
mined  by  circumstances.  To  those  in  the  mili 
tary  or  naval  service  of  the  United  States  the 
military  law  is  due  process.  The  decision, 
therefore,  of  a  military  tribunal  acting  within 
the  scope  of  its  lawful  powers  cannot  be  re 
viewed  or  set  aside  by  the  courts. 


226  CHAELES  E.  HUGHES 

It  remains  to  refer  briefly  to  questions  pre 
sented  by  some  of  the  newer  governmental 
mechanism,  products  of  a  popular  disposition 
to  which  Justice  Hughes  referred  in  his  address 
before  the  Bar  Association: 

"When  the  people  have  determined  to  exer 
cise  governmental  control,  they  are  disposed  to 
utilise  freely  whatever  powers  they  find  at  their 
immediate  command,  caring  little  for  former 
divergencies  of  political  theory. 

The  first  is  as  to  the  right  of  the  people  of  a 
State  in  their  discretion  to  adopt  and  use  ex 
pedients  such  as  the  initiative,  referendum  and 
recall,  deemed  by  some  to  be  the  acceptable 
means  of  ensuring  to  the  repositories  of  the 
sovereign  political  power  an  adequate  ultimate 
check  upon  the  misuse  of  representative  and 
executive  processes,  and  deemed  by  others  to 
usher  in  a  radical  subversion  of  fundamentals 
of  that  "republican  form  of  government" 
which  section  four  of  article  IV  of  the  Consti 
tution  says  "the  United  States  shall  guarantee 
to  every  State  in  this  Union."  Justice  Hughes 
was  a  member  of  the  Supreme  Court  at  the  time 
it  was  asked  to  deny  to  the  people  of  a  State 
the  power  to  adopt  measures  of  this  character. 
Although  he  did  not  prepare  the  opinion  of  the 
Court  in  either  of  the  cases  1  in  which  the  issue 
was  determined,  he  was  one  of  a  unanimous 

1  Pacific  Telephone  Co.  vs.  Oregon  (223  U.  S.  Eeports,  page 
118) ;  Kiernan  vs.  Portland,  Oregon  (223  U.  S.  Eeports,  page 
151). 


OFFICIAL  BESPONSIBILITY       227 

Court  which  ruled  that  the  question  is  "political 
and  governmental,  and  embraced  within  the 
scope  of  the  powers  conferred  upon  Congress, 
and  not  therefore  within  the  reach  of  judicial 
power. "  The  Supreme  Court  held  that  noth 
ing  in  the  Constitution  authorised  the  judiciary 
to  substitute  its  own  judgment  for  the  judg 
ment  of  Congress  upon  a  matter  purely  polit 
ical  and  specifically  committed  to  the  judgment 
of  Congress.  Every  citizen  would  gain  a 
clearer  idea  of  the  fundamentals  of  government 
and  the  necessary  boundaries  of  political  and 
judicial  power,  from  a  reading  of  the  opinions 
of  Chief  Justice  White  in  these  two  Oregon 
cases.1 

It  has  been  brilliantly  said  that  "the  capital 
fact  in  the  mechanism  of  modern  states  is  the 
energy  of  legislatures."  Yet  this  fact,  in  itself, 
does  not  seem  to  have  been  either  surprising 
or  distressing  to  Justice  Hughes.  In  the  same 
address  before  the  New  York  State  Bar  Asso 
ciation,  he  cited  numerous  instances  of  the 
"new  exertions "  of  governmental  power  which 
"have  followed  each  other  in  swift  succession, 
reflecting  convictions  of  recent  origin  with  re 
spect  to  National  needs, ' '  and  added : 

What  this  means  is  apparent.  Abounding  ac 
tivities  and  facility  of  intercourse  have  been 

1  Pacific  Telephone  Co.  vs.  Oregon  (223  U.  S.  Keports,  page 
118)  j  Kiernan  vs.  Portland,  Oregon  (223  U.  S.  Eeports,  page 
151). 


228  CHARLES  E.  HUGHES 

producing  the  natural  legislative  reactions.  .  .  . 
In  the  mere  multiplication  of  laws,  when  this  is 
considered  relatively  to  the  growth  of  the  coun 
try,  there  is  nothing  novel.  This  is  an  ancient 
grievance,  and  the  significance  of  its  continu 
ance  lies  in  the  showing  of  the  reluctance  of 
democracy  to  forego  legislative  opportunities 
in  the  interest  of  simplicity  and  efficiency.  I 
see  no  prospect  of  remedying  the  evil  of  need 
less  multiplicity  until  in  the  place  of  merely  gen 
eral  lamentations  and  futile  inveighing  against 
"too  much  law,"  enlightened  opinion  shall  aim 
at  securing  improvement  in  those  cases  in  which 
the  mischief  is  especially  prominent  and  some 
measure  of  relief  is  not  wholly  impracticable : 
For  example  (1)  by  increasing  restrictions 
against  special  and  private  legislation,  not  only 
through  constitutional  provisions  where  these 
are  appropriate,  but  by  changes  in  the  rules  of 
legislative  bodies  with  respect  to  the  considera 
tion  of  private  bills;  (2)  by  the  development  in 
local  communities  of  the  sense  of  civic  responsi 
bility  which  will  lead  to  intrusting  each  muni 
cipality  with  the  care  of  its  purely  local  affairs 
under  rules  of  its  own  making;  (3)  by  seeking 
to  deal  with  matters  of  general  concern,  though 
within  State  power,  through  uniform  State  laws 
not  only  enacted  but  maintained  as  such  both 
by  force  of  the  public  judgment  and  by  the  ef 
forts  of  the  Bench  to  avoid  conflicting  interpre 
tations,  and  (4)  by  seeking  to  provide  a  simple 
judicial  procedure  which  shall  not  be  a  legisla 
tive  patchwork.  We  are  apt  to  be  suspicious  of 
everything  but  generalisations,  and  we  find  it 
hard  to  agree  on  the  details  of  constructive  en- 


OFFICIAL  RESPONSIBILITY       229 

terprise.  But  gains  are  always  possible  through 
a  wise  direction  of  effort,  and  if  legislatures  are 
relieved  of  unnecessary  burdens  there  will  be 
opportunity  for  increased  care  in  formulating 
and  adopting  new  laws. 

In  his  career  at  the  Bar,  and  during  his 
service  as  Governor  of  New  York,  Mr.  Hughes 
had  manifested  a  predilection  for  the  reasoned 
and  impartial  judgment  of  men  of  special 
knowledge  and  qualifications,  whenever  any  in 
tricate  matter  of  human  welfare,  public  service 
or  trade  adjustment  was  at  issue.  Where  facts 
were  to  be  collected  as  basis  for  legislative  or 
executive  judgment  or  the  development  of  pub 
lic  opinion;  when  evidence  was  to  be  weighed 
and  relative  advantages  and  disadvantages 
sifted  and  counter-balanced;  when  a  rule  of 
public  policy  determined  by  the  people  or  legis 
lature  was  to  be  applied  to  the  multitudinous 
details  of  a  highly  organised  industry  or  com 
munity  life,  he  believed  that  the  public  should 
call  into  action  the  best  talent  at  its  command, 
instead  of  leaving  the  subject,  for  example,  to 
the  slip-shod  and  off-hand  manner  in  which  leg 
islative  bodies  often  act  upon  matters  of  that 
kind.  His  willingness  to  follow  wherever  the 
facts  and  the  ultimate  preponderance  of  public 
advantages  seemed  to  advise,  led  him  to  insist 
that  the  facts  be  first  brought  together  by  men 
expert  and  disinterested;  and  his  knowledge  of 
the  history  of  human  institutions  persuaded 


230  CHARLES  E.  HUGHES 

him  that  matters  of  inquiry,  analysis  and  deter 
mination  may  most  effectively  be  conducted  by 
small  and  expert  bodies,  reserving  to  the  peo 
ple  as  a  whole  and  their  legislative  representa 
tives  the  basic  task  of  deciding  upon  the  con 
trolling  policies  and  principles.  Several  of  his 
most  stirring  contests  as  Governor  were  in  vin 
dication  of  this  concept  of  genuinely  expert 
guidance  and  action,  in  the  first  instance,  upon 
matters  of  this  kind. 

It  has  been  perhaps  natural,  therefore,  that 
in  opinions  1  prepared  by  him  as  a  member  of 
the  Supreme  Court,  we  find  a  disposition,  on  the 
one  hand,  to  uphold  the  efficacy  of  expert  ad 
ministrative  commissions  and  give  broad  scope 
to  their  "on-the-spot"  judgment  of  conditions, 
and,  on  the  other  hand,  to  confine  the  activities 
of  these  agencies  to  the  salutary  limits  of  a 
reasonable  and  open-minded  exercise  of  discre 
tion  under  the  disclosed  facts.  The  bearings  of 
the  whole  matter  were  clearly  explained  by  him 
before  the  Bar  Association.  After  referring  to 
what  he  termed  "a  new  era  in  the  development 
of  our  law,"  and  pointing  out  the  rapid  ad 
vances  in  the  exercise  of  governmental  power 
for  the  better  adjustment  of  public  services  and 
the  extension  of  human  welfare,  he  commented 
upon  the  propriety  of  committing  certain 

1  Louisville  #  N.  E.  E.  Co.  vs.  Garrett  (231  U.  S.  Eeports, 
page  298) ;  Los  Angeles  Switching  Cases  (234  U.  S.  Eeports, 
page  294). 


OFFICIAL  RESPONSIBILITY       231 

phases  of  these  matters  to  expert  "administra- 
trve  agencies": 

With  this  noteworthy  change  in  point  of  view, 
there  have  been  constant  manifestations  of  a 
deepening  conviction  of  the  impotency  of  Legis 
latures  with  respect  to  some  of  the  most  im 
portant  departments  of  lawmaking.  Complaints 
must  be  heard,  expert  investigations  conducted, 
complex  situations  deliberately  and  impartially 
analysed,  and  legislative  rules  intelligently 
adapted  to  a  myriad  of  instances  falling  within 
a  general  class.  It  was  not  difficult  to  frame 
legislation  establishing  a  general  standard,  but 
to  translate  an  accepted  principle  into  regula 
tions  wisely  adapted  to  particular  cases  re 
quired  an  experienced  body  sitting  continuously 
and  removed  so  far  as  possible  from  the  blan 
dishments  and  intrigues  of  politics.  This 
administrative  type  is  not  essentially  new  in  it 
self,  but  the  extension  of  its  use  in  State  and 
Nation  constitutes  a  new  departure.  The  doc 
trine  that  the  Legislature  cannot  delegate  its 
power  has  not  been  pushed  so  far  as  to  make 
needed  adaptation  of  legislation  impossible,  and 
reconciliation  has  been  found  in  the  establish 
ment  by  the  Legislature  itself  of  appropriate 
standards  governing  the  action  of  its  agency. 
The  ideal  which  has  been  presented  in  justifica 
tion  of  these  new  agencies,  and  that  which  alone 
holds  promise  of  benefit  rather  than  of  hurt  to 
the  community,  is  the  ideal  of  special  knowl 
edge,  flexibility,  disinterestedness  and  sound 
judgment  in  applying  broad  legislative  princi 
ples  that  are  essential  to  the  protection  of  the 


232  CHAELES  E.  HUGHES 

community,  and  of  every  useful  activity  af 
fected,  to  the  intricate  situations  created  by  ex 
panding  enterprise.  But  mere  bureaucracy — 
narrow,  partisan  or  inexpert — is  grossly  in 
jurious  ;  it  not  only  fails  of  the  immediate  pur 
pose  of  the  law  and  is  opposed  to  traditions 
which,  happily,  are  still  honoured,  but  its  fail 
ure  creates  a  feeling  of  discouragement  border 
ing  on  pessimism  which  forms  the  most  serious 
obstacle  to  real  improvements  in  the  adjust 
ment  of  governmental  methods  to  new  exi 
gencies. 

The  standards  which  he  felt  should  control 
the  action  of  these  commissions  and  the  work 
able  relation  of  the  courts  thereto,  were  like 
wise  pointed  out  by  Justice  Hughes  in  the  same 
address.  Declaring  that  "the  tendency  to  as 
sign  to  the  courts  administrative  duties  which 
do  not  belong  to  them"  is  "opposed  to  a  proper 
conception  of  the  function  of  the  Courts,"  he 
continued : 

Legislation  of  the  first  sort  undoubtedly 
arises  from  distrust  of  powerful  administrative 
agencies;  it  shows  a  desire  to  escape  their  au 
thority  and  to  have  the  judgment  of  judicial  tri 
bunals,  with  whose  standards  the  public  is  fa 
miliar,  in  the  final  decision  of  difficult  admin 
istrative  problems.  It  seems  to  me  to  be  the 
wrong  way  to  reach  the  right  result.  The  only 
reason  for  the  creation  of  the  new  administra 
tive  instrumentalities — which  appear  to  present 
government  in  a  new  phase — is  the  complexity 


OFFICIAL  RESPONSIBILITY       233 

of  the  facts  with  which  government  undertakes 
to  deal  and  the  necessity,  if  they  are  wisely 
dealt  with,  for  the  continuous  and  expert  atten 
tion  of  a  body  exclusively  concerned  with  the 
particular  subject.  To  put  upon  the  courts  the 
burden  of  considering  the  details  of  administra 
tive  problems  would  be  to  overwhelm  them ;  but 
for  the  courts  to  revise  and  rescind  administra 
tive  action  without  a  competent  and  close  study 
of  all  the  pertinent  facts  would  be  not  only  to 
destroy  the  effectiveness  of  the  administrative 
agencies,  but  also  seriously  to  impair  the  con 
fidence  reposed  in  judicial  tribunals.  It  cannot 
be  too  strongly  insisted  that  if  we  are  to  have 
these  important  administrative  instrumentali 
ties  properly  perform  their  duty,  they  should 
stand  on  their  own  footing,  and  that  the  public 
should  realise  that  their  safeguard  is  not  in  in 
jecting  the  courts  into  the  work  of  administra 
tion,  to  the  confusion  of  both,  but  in  maintain 
ing  an  enlightened  policy  and  in  insisting  upon 
proper  standards  of  official  conduct.  The  courts 
cannot  be  substituted  for  administrative  agen 
cies  ;  nor,  as  I  believe,  is  it  to  the  ultimate  ad 
vantage  of  the  community  to  divide  between 
them  the  responsibility  for  purely  administra 
tive  action. 

This  is  not  to  say  that  the  courts  do  not  have 
a  very  important  function  in  connection  with 
the  work  of  administrative  commissions.  These 
bodies  exercise  prescribed  powers,  and  the  lim 
its  of  these  powers,  as  well  as  constitutional  re 
strictions,  must  be  defined  and  maintained  by 
judicial  tribunals.  There  is  thus  interposed  one 
of  the  most  important  safeguards  of  the  com- 


234  CHAELES  E.  HUGHES 

munity  against  all  efforts  on  the  part  of  ad 
ministrative  agents  to  draw  to  themselves  pow 
ers  not  conferred,  and  on  the  other  hand,  the 
appropriate  demand,  intelligently  enforced,  for 
the  proper  execution  of  the  law,  does  not  in  any 
way  sacrifice  administrative  efficiency.  Bather 
it  tends  to  conserve  such  efficiency  by  avoiding 
the  reactions  which  inevitably  follow  abuses  of 
authority.  There  is  also  apparent  at  times  the 
tendency,  in  a  desire  for  the  play  of  administra 
tive  discretion,  to  preserve  opportunities  for 
arbitrary  action  without  responsibility.  The 
requirement  of  a  fair  hearing,  of  action  upon 
evidence,  of  a  disclosure  of  the  basis  of  action 
that  all  parties  interested  may  have  suitable 
opportunity  to  challenge  it,  in  no  way  trammels 
the  just  administrator  who  is  loyal  to  the  stand 
ards  of  democracy,  but  are  very  important  safe 
guards  against  the  development  of  bureaucratic 
despotism  under  democratic  forms. 


CHAPTER  XV 

THE  MAN  WHO  BROKE  HIS  WRITTEN  CONTRACT 
WITHOUT  REPAYING  HIS  EMPLOYER  WHAT  HE 
HAD  BORROWED 

IN  Bailey  against  Alabama*  decided  by  the 
Supreme  Court  in  January  of  1911,  Justice 
Hughes  was  called  upon  to  declare  whether 
vital  principles  of  freedom,  which  under  ordi 
nary  industrial  conditions  would  be  recognised 
as  fundamental  in  the  relationship  of  employer 
and  employe,  might  be  put  aside  by  a  State 
perplexed  by  the  conditions  which  have  arisen 
as  to  farm  labour  in  many  of  the  plantation  dis 
tricts  of  the  South. 

The  State  of  Alabama  had  tried  to  make  a 
little  more  effective  the  legislation  it  already 
had,  along  lines  and  for  purposes  by  no  means 
unusual,  in  either  North  or  South.  The  ques 
tion  was  whether  this  amendment  went  too  far. 
The  difficulty  sought  to  be  remedied  was  that 
employes  of  an  irresponsible  and  more  or  less 
wandering  type  often  go  around  and  make  writ 
ten  contracts  with  plantation  owners,  whereby 
they  hire  out  for  a  year;  they  do  this  with  no 
intention  of  remaining  at  work  and  with  inten- 

1 219  U.  S.  Reports,  page  219. 
235 


236  CHAELES  E.  HUGHES 

tion  only  of  "getting  something  for  nothing' ' 
from  the  employer;  they  obtain  advances  of 
moneys  or  supplies  on  account  of  their  prospec 
tive  services  or  as  an  initial  payment  under  the 
contract ;  and  then  when  the  season  of  dire  need 
for  their  labour  in  the  fields  comes  on,  they  dis 
appear  or  do  nothing,  leaving  the  employer  pos 
sessed  of  a  written  contract  but  "out"  both 
money  and  farm  hands.  There  would  be  no  use 
suing  for  the  money,  and  no  way  of  compelling 
the  man  to  work  as  he  had  agreed.  The  State 
thought  it  was  a  reasonable  thing  to  draft  the 
most  effective  law  that  could  be  perfected,  un 
der  the  Constitution  and  the  American  "way  of 
doing  things,  to  protect  employing  owners 
against  this  kind  of  fraud.  So  the  State  legis 
lators  kept  experimenting  on  their  form  of 
statute,  making  it  a  little  more  drastic  from 
time  to  time,  as  the  need  became  greater  and 
new  provisions  suggested  themselves.  Now  and 
then  they  encountered  difficulties  with  their 
own  State  Supreme  Court,1  but  matters  worked 
along  until  finally  they  passed  an  amendment 
under  which  the  mere  failure  to  perform  a  con 
tract  to  work  for  a  specified  time,  coupled  with 
a  failure  to  pay  a  debt  for  advances  which  were 
to  be  liquidated  during  the  contract  period, 
would,  if  shown  in  court,  be  sufficient  evidence 
to  warrant  the  conviction  of  the  defaulting  em- 

1  Toney  vs.  The  State  (141  Alabama  Reports,  page  120)  ; 
Ex  parte  Riley  (94  Alabama  Reports,  page  82)  ;  Bailey  vs.  The 
State  (158  Alabama  Reports,  page  25). 


SERVITUDE   FOB   DEBT  237 

ploye  of  a  criminal  offence,  for  which,  in  the 
case  of  Bailey,  punishment  was  inflicted  in  the 
form  of  sentence  for  one  hundred  and  sixteen 
days  at  hard  labour,  in  lieu  of  his  prompt  pay 
ment  of  a  fine  amounting  to  twice  the  sum  of 
fifteen  dollars,  which  he  owed  his  former  em 
ployer,  together  with  the  costs. 

There  was  no  question  as  to  the  power  of  any 
State  to  provide  that  any  person  who,  with  in 
tent  to  injure  or  defraud  his  employer,  entered 
into  a  written  contract  to  work  for  him  and 
thereby  obtained  from  his  employer  money  or 
other  personal  property,  and  then  with  like 
intent  and  without  just  cause  and  without  re 
funding  the  money  or  paying  for  the  property 
refused  to  perform  the  contract,  should  be  pun 
ished  as  if  he  had  stolen  it.  Such  a  rule  of  law 
obtains  in  many  jurisdictions,  and  has  not  been 
challenged  by  the  Federal  Court.  Alabama  had 
such  a  statute,  enacted  in  1896.  Under  it,  when 
it  appeared  from  all  the  circumstances  that  the 
defaulting  employe  entered  into  the  contract 
with  the  intent  not  to  perform  it  but  to  use  it 
as  means  of  getting  money  or  otherwise  de 
frauding  the  employer,  failure  to  repay  and  re 
fusal  to  perform  subjected  him  to  criminal  lia 
bility,  if  his  non-performance  was  without  just 
cause  and  with  like  intent  to  injure  and  defraud 
the  man  for  whom  he  had  promised  to  work. 
1 '  The  difficulty  in  proving  the  intent,  made  pat 
ent  by  the  decision"  of  the  Alabama  Supreme 
Court  as  to  the  essential  elements  of  this  statu- 


238  CHAELES  E.  HUGHES 

tory  offence,  "suggested  the  amendment  of 
1903,"  which,  as  amplified  in  1907,  was  before 
the  United  States  Supreme  Court  in  the  Bailey 
case. 

This  amendment  made  refusal  or  failure  to 
perform  the  service,  or  to  refund  the  money  or 
pay  for  the  property,  if  the  employe  quit  work 
without  just  cause  before  the  contract  time  was 
up,  prima  facie  evidence  of  the  intent  to  injure 
or  defraud  the  employer.  Under  a  rule  of  evi 
dence  enforced  in  Alabama  as  to  oral  testi 
mony  rebutting  or  contradicting  a  statutory 
presumption,  an  accused  person  is  not  per 
mitted  to  testify  "as  to  his  uncommunicated 
motives,  purpose  or  intention,"  so  that  the 
practical  effect  of  the  statute  was  to  empower 
the  jury  to  convict  and  the  appellate  courts  to 
sustain  conviction,  if  it  appeared  that  the  ac 
cused  had  without  just  cause  broken  a  written 
contract  of  employment  and  had  failed  to  repay 
money  which  he  had  been  expected  to  repay  out 
of  the  proceeds  of  the  employment. 

Of  course,  in  New  York  City,  for  example,  if 
the  employer  who  made  a  written  contract  for  a 
year  with  a  salesman  and  advanced  him  money 
on  account  of  his  anticipated  earnings,  could 
hale  the  salesman  into  the  criminal  courts  when 
the  salesman  unwarrantedly  left  the  employ 
ment  without  repaying  the  moneys  advanced, 
and  then  could  obtain  the  conviction  of  the 
salesman  and  his  sentence  to  hard  labour 
merely  upon  proof  of  the  broken  contract  and 


SERVITUDE  FOE  DEBT  239 

the  moneys  unrepaid,  legislature  and  courts 
alike  would  make  short  shrift  of  any  statute 
which  authorised  such  a  proceeding,  especially 
if  conviction  meant  so  large  a  fine  as  virtually 
to  compel  the  man  to  work  the  rest  of  the  year 
or  languish  in  jail.  The  matter  presents  a  seri 
ous  question  at  all  only  when  urged  in  the  light 
of  conditions  in  plantation  districts  of  Southern 
States.  As  incumbent  of  a  judicial  office,  Jus 
tice  Hughes  ruled  promptly  that  questions  of  a 
racial  or  sectional  character  could  not  be  per 
mitted  to  enter  into  the  judicial  disposition  of 
the  case. 

"We  at  once  dismiss  from  consideration," 
said  he,  "the  fact  that  the  plaintiff  in  error  is 
a  black  man.  While  the  action  of  a  State 
through  its  officers  charged  with  the  adminis 
tration  of  a  law,  fair  in  appearance,  may  be  of 
such  a  character  as  to  constitute  a  denial  of  the 
equal  protection  of  laws,  such  a  conclusion  is 
here  neither  required  nor  justified.  The  stat 
ute,  on  its  face,  makes  no  racial  discrimination, 
and  the  record  fails  to  show  its  existence  in 
fact.  No  question  of  a  sectional  character  is 
presented,  and  we  may  view  the  legislation  in 
the  same  manner  as  if  it  had  been  enacted  in 
New  York  or  in  Idaho.  Opportunities  for  coer 
cion  and  oppression,  in  varying  circumstances, 
exist  in  all  parts  of  the  Union,  and  the  citizens 
of  all  the  States  are  interested  in  the  mainte 
nance  of  the  constitutional  guaranties,  the  con 
sideration  of  which  is  here  involved/' 


240  CHABLES  E.  HUGHES 

The  opinion  proceeds  with  an  analysis  of  the 
provisions  of  the  statute  and  its  practical 
workings : 

"Was  not  the  case  the  same  in  effect  as  if  the 
statute  had  made  it  a  criminal  offence  to  leave 
the  service  without  just  cause  and  without  liqui 
dating  the  debt  ?  To  say  that  he  has  been  found 
guilty  of  an  intent  to  injure  or  defraud  his  em 
ployer,  and  not  merely  for  breaking  his  contract 
and  not  paying  his  debt,  is  a  distinction  without 
a  difference  to  Bailey. 

Consider  the  situation  of  the  accused  under 
this  statutory  presumption.  If  at  the  outset 
nothing  took  place  but  the  making  of  the  con 
tract  and  the  receipt  of  the  money,  he  could 
show  nothing  else.  If  there  was  no  legal  justi 
fication  for  his  leaving  his  employment,  he  could 
show  none.  If  he  had  not  paid  the  debt  there 
was  nothing  to  be  said  as  to  that.  The  law  of 
the  State  did  not  permit  him  to  testify  that  he 
did  not  intend  to  injure  or  defraud.  Unless  he 
were  fortunate  enough  to  be  able  to  command 
evidence  affirmatively  showing  good  faith,  he 
was  helpless.  He  stood,  stripped  by  the  statute 
of  his  presumption  of  innocence,  and  exposed 
to  conviction  for  fraud  upon  evidence  only  of 
breach  of  contract  and  failure  to  pay.  .  .  . 

We  cannot  escape  the  conclusion  that,  al 
though  the  statute  in  terms  is  to  punish  fraud, 
still  its  natural  and  inevitable  effect  is  to  ex 
pose  to  conviction  for  crime  those  who  simply 
fail  or  refuse  to  perform  contracts  for  personal 
service  in  liquidation  of  a  debt,  and  judging  its 
purpose  by  its  effect  that  it  seeks  in  this  way 


SERVITUDE  FOE  DEBT  241 

to  provide  the  means  of  compulsion  through 
which  performance  of  such  service  may  be  se 
cured.  The  question  is  whether  such  a  statute 
is  constitutional. 

Upon  the  question  whether  the  statute  as 
actually  operative  offended  against  constitu 
tional  guaranties,  Justice  Hughes  continued: 

In  this  class  of  cases,  where  the  entire  sub 
ject-matter  of  the  legislation  is  otherwise  with 
in  State  control,  the  question  has  been  whether 
the  prescribed  rule  of  evidence  interferes  with 
the  guaranteed  equality  before  the  law  or  vio-, 
lates  those  fundamental  rights  and  immutable 
principles  of  justice  which  are  embraced  within 
the  conception  of  due  process  of  law.  But  where 
the  conduct  or  fact,  the  existence  of  which  is 
made  the  basis  of  the  statutory  presumption, 
itself  falls  within  the  scope  of  a  provision  of  the 
Federal  Constitution,  a  further  question  arises. 
It  is  apparent  that  a  constitutional  prohibition 
cannot  be  transgressed  indirectly  by  the  crea 
tion  of  a  statutory  presumption  any  more  than 
it  can  be  violated  by  direct  enactment.  The 
power  to  create  presumptions  is  not  a  means  of 
escape  from  constitutional  restrictions.  And 
the  State  may  not  in  this  way  interfere  with 
matters  withdrawn  from  its  authority  by  the 
Federal  Constitution  or  subject  an  accused  to 
conviction  for  conduct  which  it  is  powerless  to 
prescribe. 

In  the  present  case  it  is  urged  that  the  statute 
as  amended,  through  the  operation  of  the  pre 
sumption  for  which  it  provides,  violates  the 


242  CHAELES  E.  HUGHES 

Thirteenth  Amendment  of  the  Constitution  of 
the  United  States  and  the  act  of  Congress 
passed  for  its  enforcement. 

The  Thirteenth  Amendment  provides: 

"Section  1.  Neither  slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  con 
victed,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

1  '  Section  2.  Congress  shall  have  power  to  en 
force  this  article  by  appropriate  legisla 
tion."  .  .  . 

The  language  of  the  Thirteenth  Amendment 
was  not  new.  It  reproduced  the  historic  words 
of  the  ordinance  of  1787  for  the  government  of 
the  Northwest  Territory  and  gave  them  unre 
stricted  application  within  the  United  States 
and  all  places  subject  to  their  jurisdiction. 
While  the  immediate  concern  was  with  African 
slavery,  the  Amendment  was  not  limited  to  that. 
It  was  a  charter  of  universal  civil  freedom  for 
all  persons,  of  whatever  race,  colour  or  estate, 
under  the  flag. 

The  words  involuntary  servitude  have  "a 
larger  meaning  than  slavery."  "It  was  very 
well  understood  that  in  the  form  of  apprentice 
ship  for  long  terms,  as  it  had  been  practised  in 
the  West  India  Islands,  on  the  abolition  of  slav 
ery  by  the  English  government,  or  by  reducing 
the  slaves  to  the  condition  of  serfs  attached  to 
the  plantation,  the  purpose  of  the  article  might 
have  been  evaded,  if  only  the  word  slavery  had 
been  used."  (Slaughter  House  Cases,  16  Wall, 
p.  69.)  The  plain  intention  was  to  abolish  slav 
ery  of  whatever  name  and  form  and  all  its 


SERVITUDE  FOE  DEBT  243 

badges  and  incidents ;  to  render  impossible  any 
state  of  bondage ;  to  make  labour  free,  by  pro 
hibiting  that  control  by  which  the  personal  serv 
ice  of  one  man  is  disposed  of  or  coerced  for 
another's  benefit  which  is  the  essence  of  invol 
untary  servitude.  .  .  . 

The  act  of  March  2, 1867,  was  a  valid  exercise 
of  this  express  authority.  It  declared  that  all 
laws  of  any  State,  by  virtue  of  which  any  at 
tempt  should  be  made  "to  establish,  maintain, 
or  enforce,  directly  or  indirectly,  the  voluntary 
or  involuntary  service  of  labour  of  any  persons 
as  peons,  in  liquidation  of  any  debt  or  obliga 
tion,  or  otherwise, ' '  should  be  null  and  void. 

Peonage  is  a  term  descriptive  of  a  condition 
which  has  existed  in  Spanish  America,  and  espe 
cially  in  Mexico.  The  essence  of  the  thing  is 
compulsory  service  in  payment  of  a  debt.  A 
peon  is  one  who  is  compelled  to  work  for  his 
creditor  until  his  debt  is  paid.  And  in  this  ex 
plicit  and  comprehensive  enactment,  Congress 
was  not  concerned  with  mere  names  or  manner 
of  description,  or  with  a  particular  place  or  sec 
tion  of  the  country.  It  was  concerned  with  a 
fact,  wherever  it  might  exist ;  with  a  condition, 
however  named  and  wherever  it  might  be  estab 
lished,  maintained  or  enforced. 

The  fact  that  the  debtor  contracted  to  per 
form  the  labour  which  is  sought  to  be  compelled 
does  not  withdraw  the  attempted  enforcement 
from  the  condemnation  of  the  statute.  The  full 
intent  of  the  constitutional  provision  could  be 
defeated  with  obvious  facility  if,  through  the 
guise  of  contracts  under  which  advances  had 
been  made,  debtors  could  be  held  to  compulsory 


244  CHARLES  E.  HUGHES 

service.  It  is  the  compulsion  of  the  service 
that  the  statute  inhibits,  for  when  that  occurs 
the  condition  of  servitude  is  created,  which 
would  be  not  less  voluntary  because  of  the  orig 
inal  agreement  to  work  out  the  indebtedness. 
The  contract  exposes  the  debtor  to  liability  for 
the  loss  due  to  the  breach,  but  not  to  enforced 
labour.  .  .  . 

The  act  of  Congress,  nullifying  all  State  laws 
by  which  it  should  be  attempted  to  enforce  the 
i  l  service  or  labour  of  any  persons  or  peons,  in 
liquidation  of  any  debt  or  obligation,  or  other 
wise,"  necessarily  embraces  all  legislation 
which  seeks  to  compel  the  service  or  labour  by 
making  it  a  crime  to  refuse  or  fail  to  perform 
it.  Such  laws  would  furnish  the  readiest  means 
of  compulsion.  The  Thirteenth  Amendment 
prohibits  involuntary  servitude  except  as  pun 
ishment  for  crime.  But  the  exception,  allow 
ing  full  latitude  for  the  enforcement  of  penal 
laws,  does  not  destroy  the  prohibition.  It  does 
not  permit  slavery  or  involuntary  servitude  to 
be  established  or  maintained  through  the  opera 
tion  of  the  criminal  law  by  making  it  a  crime  to 
refuse  to  submit  to  the  one  or  to  render  the 
service  which  would  constitute  the  other.  The 
State  may  impose  involuntary  servitude  as  a 
punishment  for  crime,  but  it  may  not  compel 
one  man  to  labour  for  another  in  payment  of  a 
debt,  by  punishing  him  as  a  criminal  if  he  does 
not  perform  the  service  or  pay  the  debt. 

If  the  statute  in  this  case  had  authorised  the 
employing  company  to  seize  the  debtor  and  hold 
him  to  the  service  until  he  paid  the  fifteen  dol 
lars,  or  had  furnished  the  equivalent  in  labour, 


SEEVITUDE  FOB  DEBT  245 

its  invalidity  would  not  be  questioned.  It 
would  be  equally  clear  that  the  State  could 
not  authorise  its  constabulary  to  prevent  the 
servant  from  escaping  and  to  force  him  to  work 
out  his  debt.  But  the  State  could  not  avail  itself 
of  the  sanction  of  the  criminal  law  to  supply  the 
compulsion  any  more  than  it  could  use  or  au 
thorise  the  use  of  physical  force.  uln  con 
templation  of  the  law  the  compulsion  of  such 
service  by  the  fear  of  punishment  under  a  crim 
inal  statute  is  more  powerful  than  any  guard 
which  the  employer  could  station." 

What  the  State  may  not  do  directly,  it  may 
not  do  indirectly.  If  it  cannot  punish  the  serv 
ant  as  a  criminal  for  the  mere  failure  or  refusal 
to  serve  without  paying  his  debt,  it  is  not  per 
mitted  to  accomplish  the  same  result  by  creat 
ing  a  statutory  compulsion  which  upon  proof  of 
no  other  fact  exposes  him  to  conviction  and 
punishment.  Without  imputing  any  actual  mo 
tive  to  oppress,  we  must  consider  the  natural 
operation  of  the  statute  here  in  question,  and 
it  is  apparent  that  it  furnishes  a  convenient 
instrument  for  the  coercion  which  the  Consti 
tution  and  the  act  of  Congress  forbid;  an  in 
strument  of  compulsion  peculiarly  effective  as 
against  the  poor  and  the  ignorant,  its  most 
likely  victims.  There  is  no  more  important  con 
cern  than  to  safeguard  the  freedom  of  labour 
upon  which  alone  can  enduring  prosperity  be 
based.  The  provisions  designed  to  secure  iU 
would  soon  become  a  barren  form  if  it  were  pos 
sible  to  establish  a  statutory  presumption  of 
this  sort  and  to  hold  over  the  heads  of  the  la 
bourers  the  threat  of  punishment  for  crime, 


246  CHAELES  E.  HUGHES 

under  the  name  of  fraud  but  merely  upon  evi 
dence  of  failure  to  work  out  their  debts.  The 
act  of  Congress  deprives  of  effect  all  legislative 
measures  of  any  State  through  which  directly 
or  indirectly  the  prohibited  thing,  to  wit,  com 
pulsory  service  to  secure  the  payment  of  a  debt, 
may  be  established  or  maintained;  and  we  con 
clude  that  Sec.  4730,  as  amended,  of  the  Code 
of  Alabama,  in  so  far  as  it  makes  the  refusal 
or  failure  to  perform  the  act  or  service,  without 
refunding  the  money  or  paying  for  the  property 
received,  prima  facie  evidence  of  the  commis 
sion  of  the  crime  which  the  section  defines,  is 
in  conflict  with  the  Thirteenth  Amendment  and 
the  legislation  authorised  by  that  Amendment, 
and  is  therefore  invalid. 

It  may  be  unfortunate  and  regrettable  that 
the  State  of  Alabama  could  not  continue  this 
particular  method  of  dealing  with  a  situation 
which  its  legislature  long  deemed  serious.  On 
the  other  hand,  it  may  be  better,  in  the  long 
run,  for  the  people  of  that  State  and  all  the 
States,  that  even  an  apparent  need  was  not 
permitted  to  warp  or  weaken  a  fundamental 
which  may  some  day  be  acclaimed  as  of  imper 
ishable  value.  With  the  expediency  of  the  en 
forcement  or  the  abrogation  of  the  legislation, 
the  Supreme  Court  and  Justice  Hughes  of 
course  had  no  concern.  Sworn  to  defend  the 
Constitution  and  apply  the  law,  they  had  only 
to  answer  the  question  whether  the  amendment 
in  its  actual  workings  brought  about  results 
which  the  Constitution  and  statutes  were  de- 


SERVITUDE  FOE  DEBT  247 

signed  to  prevent.  Was  Justice  Hughes  right 
or  wrong  in  his  analysis  of  actual  workings? 
If  right,  then  the  appeal  for  withdrawal  of  the 
barriers  to  this  Alabama  legislation  must  be 
made  at  least  to  the  Congress  which,  after  all 
the  years,  still  keeps  in  force  the  old  "peonage 
statute  "  of  1867.  The  President  and  Congress, 
not  the  Supreme  Court,  have  continued  on  the 
statute  books  the  1867  enactment  under  which 
the  Alabama  statute  was  held  unconstitutional, 
by  Chief  Justice  White  of  Louisiana,  as  well  as 
Justice  Hughes  of  New  York. 


CHAPTER  XVI 

AMERICA  AND  THE  IMMIGRANT  OF  TO-DAY  AND 
YESTERDAY 

NOTABLY  as  Governor  of  New  York,  Mr. 
Hughes  had  taken  a  deep  and  active  interest  in 
proposals  for  bettering,  within  acceptable  lines, 
the  conditions  under  which  newcomers  to 
American  shores  make  their  start  in  the  indus 
trial  and  social  life  of  their  adopted  land.  A 
Commission  of  notable  experts  and  humanitari 
ans  was  created,  upon  his  recommendation,  in 
1908;  this  body  reported  a  comprehensive 
series  of  constructive  measures  in  1910,  which 
he  in  turn  commended  to  the  favourable  con 
sideration  of  the  Legislature;  and  in  conse 
quence,  New  York  was  first  in  putting  in  effect 
many  of  those  measures  for  State  co-operation 
in  the  "Americanisation"  and  better  distribu 
tion  of  immigrants,  which  have  subsequently 
been  endorsed  by  most  of  those  who  have  given 
the  subject  careful  study.  Said  Governor 
Hughes  at  that  time : 

Our  laws  should  be  adapted  to  meet  the  exi 
gency  which  arises  from  the  introduction  of 
so  many  into  our  population  who  are  unfamiliar 
with  our  usages  and  laws  and  are  the  ready  vic- 

248 


AMERICA  AND  THE  IMMIGRANT    249 

tims  of  manifold  impositions.  We  cannot  afford 
to  regard  with  cynical  indifference  the  condi 
tion  and  opportunities  of  those  who  have  re 
cently  come  to  us  from  foreign  lands,  and  we 
should  be  solicitous  to  make  such  improvement 
in  our  laws  and  administration  as  will  reach  the 
special  abuses  which  have  been  found  to  exist. 
It  should  be  considered  to  what  extent  they 
may  be  reached  through  existing  governmental 
agencies  and  how  far  it  may  be  necessary  to 
improve  these  agencies  to  ensure  practical  cor 
rection.  It  is  desirable  that  there  should  be 
legislation  imposing  more  effective  restrictions 
upon  the  business  of  private  individuals  who 
receive  deposits  of  money  in  small  sums.1  The 
condition  of  labour  camps  in  connection  with 
public  works  should  also  receive  proper  atten 
tion.  The  importance  of  suitable  vital  statis 
tics  and  of  public  records  of  aliens  remaining 
in  our  State  should  be  recognised,  and  it  should 
also  be  considered  whether  it  is  not  feasible  to 
adopt  some  means  to  promote  their  better  dis 
tribution. 

As  early  as  October  19,  1907,  in  an  address 
at  the  dedication  of  a  statue  erected  in  memory 
of  a  distinguished  citizen  of  foreign  extraction, 

JIn  Engel  vs.  O'Malley  (219  TJ.  S.  Eeports,  page  128),  the 
Court  upheld  the  constitutionality,  under  the  "police  power," 
of  the  banking  legislation  enacted  in  pursuance  of  this  rec 
ommendation  by  Governor  Hughes.  The  statute  was  upheld 
largely  on  the  ground  that  it  placed  needed  safeguards  around 
the  relations  between  "private  bankers,"  who  accepted  sums 
largely  for  transmission  abroad,  and  "newly  arrived  immi 
grants,"  as  yet  unaccustomed  to  the  business  practices  of  a 
strange,  new  country. 


250  CHARLES  E.  HUGHES 

he  had  indicated  his  mode  of  approach  to  the 
problems  of  an  unqualified  Americanism : 

Fortunate  also  is  it  that  we  are  becoming 
more  and  more  free  from  racial  and  provincial 
prejudices,  and  are  able  to  make  a  truer  esti 
mate  of  the  many  sources  from  which  we  have 
derived  our  National  strength  and  the  virtues 
of  our  citizenship.  It  is  a  pleasant  thought, 
which  frequently  has  been  expressed,  that  the 
ancestors  of  most  of  those  who  settled  the  coun 
try  in  colonial  days  once  lived  in  the  German 
forests ;  and  we  witness  here,  on  a  large  scale, 
and  after  centuries  of  varied  experience,  what 
is  virtually  a  reuniting  of  the  descerdants  of  a 
common  stock.  But  however  pleasing  this  may 
be  to  the  historical  imagination,  our  unity  in 
fact  is  not  racial  and  does  not  depend  upon 
blood  relationship,  whether  near  or  remote.  It 
is  the  unity  of  a  common  National  ideal;  it  is 
the  unity  of  a  common  conception  of  the  dig 
nity  of  manhood;  it  is  the  unity  of  a  common 
recognition  of  equal  civil  rights;  it  is  unity  in 
devotion  to  liberty  expressed  in  institutions 
designed  to  give  every  man  a  fair  opportunity 
for  the  exercise  of  his  talents  and  to  make  the 
activities  of  each  subordinate  to  the  welfare  of 
all.  To  the  maintenance  of  this  ideal  and  to 
the  fulfilment  of  the  purposes  of  our  National 
organisation,  each  race  has  made  its  contribu 
tion.  And  we  are  not  truly  Americans  if  we  do 
not  greatly  rejoice  in  the  fact  that  here  is  more 
than  the  work  of  any  one  people,  and  more 
than  the  product  of  any  one  experience ;  that  to 
the  making  and  to  the  prosperity  of  this  com- 


AMERICA  AND  THE  IMMIGRANT    251 

monwealth  humanity  has  given  of  its  best ;  and 
that  its  vigour  and  unprecedented  strength  are 
due  in  no  small  degree  to  the  fusion  of  its 
diverse  elements.  .  .  . 

This  is  our  common  country.  Whatever  the 
abode  of  our  ancestors,  this  is  our  home  and 
will  be  the  home  of  our  children,  and  in  our 
love  for  our  institutions,  and  in  our  desire  to 
maintain  the  standards  of  civic  conduct  which 
are  essential  to  their  perpetuity,  we  recognise 
no  difference  in  race  or  creed — we  stand  united, 
a  contented  people  rejoicing  in  the  privileges 
and  determined  to  meet  the  responsibilities  of 
American  citizenship. 

In  view  of  the  part  which,  as  Governor  of 
New  York,  he  had  taken  in  awakening  public 
thought  and  effort  in  behalf  of  a  more  patri 
otic  handling  of  governmental  responsibilities 
towards  newcomers  to  this  country,  it  was  per 
haps  more  than  coincidence  that  in  the  Supreme 
Court  he  was  called  upon  to  prepare  the  opin 
ion  of  the  Court  in  several  important  cases 
where  the  rights  of  immigrants  were  at  stake. 
For  example,  at  the  end  of  1914,  the  voters  of 
Arizona  had  utilised  the  initiative  provision  of 
their  State  Constitution  to  put  in  force  a 
measure  which  was  frankly  called  "an  act  to 
protect  the  citizens  of  the  United  States  in 
their  employment  against  non-citizens  of  the 
United  States,  in  Arizona,  and  to  provide  pen 
alties  and  punishment  for  the  violation  there 
of."  The  Act  itself  required  every  employer 


252  CHAELES  E.  HUGHES 

of  more  than  five  persons,  "regardless  of  kind 
or  class  of  work,  or  sex  of  workers/'  to  "em 
ploy  not  less  than  eighty  per  cent,  qualified  elec 
tors  or  native-born  citizens  of  the  United  States 
Or  some  sub-division  thereof. "  A  man  named 
Eaich  was  working  in  a  restaurant  conducted  by 
one  Truax,  in  Bisbee,  Arizona.  He  had  been 
born  in  Austria  and  had  not  yet  been  natural 
ised.  Of  his  eight  fellow  employes,  only  two 
were  either  "native-born"  citizens  of  the 
United  States  or  qualified  electors.  When  the 
Act  went  into  effect,  Truax  was  afraid  of  its 
penalties,  told  Raich  so,  and  discharged  him. 

Raich  took  the  case  into  Court.1  He  said  that 
inasmuch  as  the  United  States  had  admitted 
him  into  the  country,  the  United  States  ought 
not  to  permit  any  State  to  create  arbitrary  con 
ditions  preventing  his  continuance  in  employ 
ment  here ;  that  if  under  the  laws  an  alien  was 
entitled  to  come  in  and  live  here,  he  was  enti 
tled  to  have  no  legal  barriers  put  in  the  way  of 
his  purpose  to  earn  here  a  livelihood.  Accord 
ingly  he  asked  the  Supreme  Court  to  sanction 
an  injunction  restraining  the  enforcement  of 
the  statute,  on  the  ground  that  it  denied  to  him 
the  ' l  equal  protection  of  the  laws. ' '  The  Court, 
through  Justice  Hughes,  held  that  the  State 
statute  did  go  too  far  and  operated  to  deny  to 
non-naturalised  inhabitants  of  Arizona  essen 
tial  rights  to  which  they  were  fairly  entitled 

1  Truax  vs.  Eaich  (239  U.  S.  Reports,  page  33). 


AMERICA  AND  THE  IMMIGRANT    253 

under  the  American  form  of  government.    Said 
the  opinion  read  by  Justice  Hughes : 

The  complainant,  a  native  of  Austria,  has 
been  admitted  to  the  United  States  under  the 
Federal  law.  He  was  thus  admitted  with  the 
privilege  of  entering  and  abiding  in  the  United 
States,  and  hence  of  entering  and  abiding  in 
any  State  in  the  Union.  .  .  .  Being  lawfully  an 
inhabitant  of  Arizona,  the  complainant  is  enti 
tled  under  the  Fourteenth  Amendment  to  the 
equal  protection  of  its  laws.  The  description 
— "any  person  within  its  jurisdiction" — as  it 
has  frequently  been  held,  includes  aliens. 
"  These  provisions, "  said  the  Court  in  Yick  Wo 
v.  Hopkins,  118  U.  S.  356,  369  (referring  to  the 
due  process  and  equal  protection  clauses  of  the 
Amendment),  "are  universal  in  their  applica 
tion,  to  all  persons  within  the  territorial  juris 
diction,  without  regard  to  any  differences  of 
race,  of  colour,  or  of  nationality ;  and  the  equal 
protection  of  the  laws  is  a  pledge  of  the  pro 
tection  of  equal  laws."  See  also  Wong  Wing 
v.  United  States,  163  U.  S.  228,  242;  United 
States  v.  Wong  Kim  Ark,  169  U.  S.  649,  695. 
The  discrimination  defined  by  the  act  does 
not  pertain  to  the  regulation  or  distribution  of 
the  public  domain,  or  of  the  common  property 
or  resources  of  the  people  of  the  State,  the 
enjoyment  of  which  may  be  limited  to  its  citi 
zens  as  against  both  aliens  and  the  citizens  of 
other  States.  ...  It  should  be  added  that  the 
act  is  not  limited  to  persons  who  are  engaged  on 
public  work  or  receive  the  benefit  of  public 
moneys.  The  discrimination  here  involved  is 


254  CHAELES  E.  HUGHES 

imposed  upon  the  conduct  of  ordinary  private 
enterprise. 

As  the  appellants  rightly  say,  there  has  been 
no  subterfuge.  It  is  an  act  aimed  at  the  em 
ployment  of  aliens,  as  such,  in  the  businesses 
described.  Literally,  its  terms  might  be  taken 
to  include  with  aliens  those  naturalised  citizens 
who  by  reason  of  change  of  residence  might 
not  be  at  the  time  qualified  electors  in  any  sub 
division  of  the  United  States,  but  we  are  deal 
ing  with  the  main  purpose  of  the  statute,  defi 
nitely  stated,  in  the  execution  of  which  the  com 
plainant  is  to  be  forced  out  of  his  employment 
as  a  cook  in  a  restaurant,  simply  because  he  is 
an  alien. 

It  is  sought  to  justify  this  act  as  an  exercise 
of  the  power  of  the  State  to  make  reasonable 
classifications  in  legislating  to  promote  the 
health,  safety,  morals  and  welfare  of  those 
within  its  jurisdiction.  But  this  admitted  au 
thority,  with  the  broad  range  of  legislative  dis 
cretion  that  it  implies,  does  not  go  so  far  as 
to  make  it  possible  for  the  State  to  deny  to 
lawful  inhabitants,  because  of  their  race  or  na 
tionality,  the  ordinary  means  of  earning  a  live 
lihood.  'It  requires  no  argument  to  show  that 
the  right  to  wTork  for  a  living  in  the  common 
occupations  of  the  community  is  of  the  very 
essence  of  the  personal  freedom  and  opportu 
nity  that  it  was  the  purpose  of  the  Amendment 
to  secure.  If  this  could  be  refused  solely  upon 
the  ground  of  race  or  nationality,  the  prohibi 
tion  of  the  denial  to  any  person  of  the  equal 
protection  of  the  laws  would  be  a  barren  form 
of  words.  It  is  no  answer  to  say,  as  it  is 


AMERICA  AND  THE  IMMIGRANT    255 

argued,  that  the  act  proceeds  upon  the  assump 
tion  that  "the  employment  of  aliens  unless 
restrained  was  a  peril  to  the  public  welfare." 
The  discrimination  against  aliens  in  the  wide 
range  of  employments  to  which  the  act  relates 
is  made  an  end  in  itself  and  thus  the  authority 
to  deny  to  aliens,  upon  the  mere  fact  of  their 
alienage,  the  right  to  obtain  support  in  the 
ordinary  fields  of  labour  is  necessarily  involved. 
It  must  also  be  said  that  reasonable  classifica 
tion  implies  action  consistent  with  the  legiti 
mate  interests  of  the  State,  and  it  will  not  be 
disputed  that  these  cannot  be  so  broadly  con 
ceived  as  to  bring  them  into  hostility  to  ex 
clusive  Federal  power.  The  authority  to  con 
trol  immigration — to  admit  or  exclude  aliens — 
is  vested  solely  in  the  Federal  government. 
The  assertion  of  an  authority  to  deny  to  aliens 
the  opportunity  of  earning  a  livelihood  when 
lawfully  admitted  to  the  State  would  be  tanta 
mount  to  the  assertion  of  the  right  to  deny  them 
entrance  and  abode,  for  in  ordinary  cases  they 
cannot  live  where  they  cannot  work.  And,  if 
such  a  policy  were  permissible,  the  practical 
result  would  be  that  those  lawfully  admitted  to 
the  country  under  the  authority  of  the  acts  of 
Congress,  instead  of  enjoying  in  a  substantial 
sense  and  in  their  full  scope  the  privileges  con 
ferred  by  the  admission,  would  be  segregated 
in  such  of  the  States  as  chose  to  offer  hospi 
tality. 

It  is  insisted  that  the  act  should  be  sup 
ported  because  it  is  not  "a  total  deprivation 
of  the  right  of  the  alien  to  labour ";  that  is, 
the  restriction  is  limited  to  those  businesses  in 


256  CHAKLES  E.  HUGHES 

which  more  than  five  workers  are  employed, 
and  to  the  ratio  fixed.  It  is  emphasised  that 
the  employer  in  any  line  of  business  who  em 
ploys  more  than  five  workers  may  employ 
aliens  to  the  extent  of  twenty  per  cent,  of  his 
employes.  But  the  fallacy  of  this  argument 
at  once  appears.  If  the  State  is  at  liberty  to 
treat  the  employment  of  aliens  as  in  itself  a 
peril  requiring  restraint  regardless  of  kind  or 
class  of  work,  it  cannot  be  denied  that  the  au 
thority  exists  to  make  its  measures  to  that  end 
effective.  If  the  restriction  to  twenty  per  cent, 
now  imposed  is  maintainable,  the  State  undoubt 
edly  has  the  power  if  it  sees  fit  to  make  the  per 
centage  less.  We  have  nothing  before  us  to 
justify  the  limitation  to  twenty  per  cent,  save 
the  judgment  expressed  in  the  enactment,  and 
if  that  is  sufficient,  it  is  difficult  to  see  why  the 
apprehension  and  conviction  thus  evidenced 
would  not  be  sufficient  were  the  restriction  ex 
tended  so  as  to  permit  only  ten  per  cent,  of  the 
employes  to  be  aliens  or  even  a  less  percentage, 
or  were  it  made  applicable  to  all  businesses  in 
which  more  than  three  workers  were  employed 
instead  of  applying  to  those  employing  more 
than  five.  We  have  frequently  said  that  the  leg 
islature  may  recognise  degrees  of  evil  and  adapt 
its  legislation  accordingly;  but  underlying  the 
classification  is  the  authority  to  deal  with  that 
at  which  the  legislation  is  aimed.  The  restric 
tion  now  sought  to  be  sustained  is  such  as  to 
suggest  no  limit  to  the  State's  power  of  ex 
cluding  aliens  from  employment  if  the  principle 
underlying  the  prohibition  of  the  act  is  con 
ceded.  No  special  public  interest  with  respect 


AMERICA  AND  THE  IMMIGRANT    257 

to  any  particular  business  is  shown  that  could 
possibly  be  deemed  to  support  the  enactment, 
for  as  we  have  said  it  relates  to  every  sort. 
The  discrimination  is  against  aliens  as  such  in 
competition  with  citizens  in  the  described  range 
of  enterprises  and  in  our  opinion  it  clearly  falls 
under  the  condemnation  of  the  fundamental 
law. 

On  the  other  hand,  the  Court  has  manifested 
no  disposition  to  sanction  misuse  of  the  high 
privileges  of  citizenship  through  naturalisation 
or  to  withhold  from  American  citizens  the  pref 
erences  which  may  be  accorded  them  along 
lines  consonant  with  fundamental  rights.  It 
unanimously  affirmed 1  the  cancellation  of  a 
naturalisation  certificate  obtained  by  one 
Luria,  where  it  appeared  that  "Luria  did  not 
at  the  time  intend  to  become  a  permanent  citizen 
of  the  United  States,  but  only  to  obtain  the 
indicia  of  such  citizenship  in  order  that  he 
might  enjoy  its  advantages  and  protection  and 
yet  take  up  and  maintain  a  permanent  resi 
dence  in  a  foreign  country."  There  is  a  fine 
summary  of  the  fundamentals  of  the  obligations 
of  naturalised  citizenship  in  this  opinion,  joined 
in  by  Justice  Hughes  and  his  colleagues  on 
October  20,  1913: 

Citizenship  is  membership  in  a  political  so 
ciety  and  implies  a  duty  of  allegiance  on  the 
part  of  the  member  and  a  duty  of  protection  on 

1  Luria  vs.  U.  S.  (£31  U.  S.  Eeports,  page  9). 


258  CHAELES  E.  HUGHES 

the  part  of  the  society.  These  are  reciprocal 
obligations,  one  being  a  compensation  for  the 
other.  Under  our  Constitution,  a  naturalised 
citizen  stands  on  an  equal  footing  with  the 
native  citizen  in  all  respects,  save  that  of  eli 
gibility  to  the  Presidency.  Turning  to  the  nat 
uralisation  laws  preceding  the  act  of  1906,  be 
ing  those  under  which  Luria  obtained  his  cer 
tificate,  we  find  that  they  required,  first,  that 
the  alien,  after  coming  to  this  country,  should 
declare  on  oath,  before  a  court  or  its  clerk, 
that  it  was  bona  fide  his  intention  to  become  a 
citizen  of  the  United  States  and  to  renounce 
forever  all  allegiance  and  fidelity  to  any  foreign 
sovereignty;  second,  that  at  least  two  years 
should  elapse  between  the  making  of  that  decla 
ration  and  his  application  for  admission  to  citi 
zenship;  third,  that  as  a  condition  to  his  ad 
mission  the  court  should  be  satisfied,  through 
the  testimony  of  citizens,  that  he  had  resided 
within  the  United  States  five  years  at  least,  and 
that  during  that  time  he  had  behaved  as  a  man 
of  good  moral  character,  attached  to  the  prin 
ciples  of  the  Constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  hap 
piness  of  the  same ;  and,  fourth,  that  at  the  time 
of  his  admission  he  should  declare  on  oath  that 
he  would  support  the  Constitution  of  the 
United  States  and  that  he  absolutely  and  en 
tirely  renounced  and  abjured  all  allegiance  and 
fidelity  to  every  foreign  sovereignty.  These 
requirements  plainly  contemplated  that  the  ap 
plicant,  if  admitted,  should  be  a  citizen  in  fact 
as  well  as  in  name — that  he  should  assume  and 
bear  the  obligations  and  duties  of  that  status 


AMERICA  AND  THE  IMMIGRANT    259 

as  well  as  enjoy  its  rights  and  privileges.  In 
other  words,  it  was  contemplated  that  his  ad 
mission  should  be  mutually  beneficial  to  the 
government  and  himself,  the  proof  in  respect 
of  his  established  residence,  moral  character, 
and  attachment  to  the  principles  of  the  Con 
stitution  being  exacted  because  of  what  they 
promised  for  the  future,  rather  than  for  what 
they  told  in  the  past. 

By  the  clearest  implication  those  laws  show 
that  it  was  not  intended  that  naturalisation 
could  be  secured  thereunder  by  an  alien  whose 
purpose  was  to  escape  the  duties  of  his  native 
allegiance  without  taking  upon  himself  those  of 
citizenship  here,  or  by  one  whose  purpose  was 
to  reside  permanently  in  a  foreign  country  and 
to  use  his  naturalisation  as  a  shield  against  the 
imposition  of  duties  there,  while  in  his  absence 
he  was  avoiding  his  duties  here.  Naturalisa 
tion  secured  with  such  a  purpose  was  wanting 
in  one  of  its  most  essential  elements — good 
faith  on  the  part  of  the  applicant.  It  involved 
a  wrongful  use  of  a  beneficent  law. 

The  Supreme  Court  likewise,  in  Helm  against 
McCall^  decided  in  November  of  1915,  held  that 
the  State  as  an  employer,  in  entering  into  or 
authorising  contracts  for  the  doing  of  work  for 
which  it  was  to  pay,  wholly  or  in  part,  has  a 
plenary  right  to  prefer  its  own  citizens  to 
aliens  without  incurring  the  condemnation  of 
the  National  or  State  Constitution.  On  public 
works,  therefore,  the  State  and  its  sub-divisions 

1 239  U.  S.  Beports,  page  175. 


260  CHAELES  E.  HUGHES 

have  the  same  power  which  any  employer  would 
have,  of  his  own  volition,  to  give  the  prefer 
ence  to  citizens  of  the  State  which  is  paying  for 
the  work.  And  in  Tang  Tun  against  Edsell,1 
the  Supreme  Court  was  asked  by  a  Chinese 
person  who  sought  entry  to  the  United  States, 
to  review  and  reverse,  in  effect,  a  determina 
tion  of  the  inspector  at  the  port  of  application, 
affirmed  by  the  Secretary  of  Commerce  and  La 
bour,  denying  to  the  petitioner  the  right  of  ad 
mission  to  this  country.  The  denial  of  admis 
sion  was  on  the  ground  that,  under  all  of  the 
circumstances,  Tang  Tun  had  not  sufficiently 
established  his  American  citizenship,  as  was 
necessary  were  he  to  be  entitled  to  pass  the  bar 
riers  of  the  Exclusion  Act.  The  United  States 
District  Court,  upon  Tang  Tun's  application 
for  a  writ  of  habeas  corpus  after  the  Secretary 
of  Commerce  and  Labour  had  sustained  the 
action  of  the  local  immigration  officials,  decided 
that  Tang  Tun  was  entitled  to  come  in,  and  so 
reversed  the  order  of  the  inspector  "on  the 
spot."  The  Circuit  Court  of  Appeals  and  the 
Supreme  Court  were  of  the  opinion  that  all  the 
requirements  of  fair  hearing  and  open-minded 
decision  had  been  fulfilled  by  the  local  officers, 
and  that  there  was  no  ground  for  judicial  inter 
ference  with  their  salutary  discretion,  based  on 
first-hand  information  and  observation. 

"If  it  does  not  affirmatively  appear,"  said 
Justice  Hughes,  in  construing  the  applicable 

1  223  U.  S.  Reports,  page  673. 


AMERICA  AND  THE  IMMIGRANT    261 

statutes,  "that  the  executive  officers  have  acted 
in  some  unlawful  or  improper  way  and  abused 
their  discretion,  their  finding  upon  the  question 
of  citizenship  must  be  deemed  to  be  conclusive 
and  is  not  subject  to  review  by  the  Court.  .  .  . 
The  record  fails  to  show  that  their  authority 
was  not  fairly  exercised,  that  is,  consistently 
with  the  fundamental  principles  of  justice  em 
braced  within  the  conception  of  due  process 
of  law.  And,  this  being  so,  the  merits  of  the 
case  were  not  open  to  judicial  examination." 


CHAPTER   XVH 


THE   COURTS  AS  "EXPEKT  AGENTS  OF  DEMOCRACY*' 


IN  the  address  which  he  delivered  before  the 
New  York  State  Bar  Association  last  January, 
Justice  Hughes  discussed  phases  of  the  work  of 
the  courts,  and  indicated  lines  along  which 
the  constructive  statesmanship  of  the  future, 
on  the  bench  and  in  legislative  councils,  may 
proceed  in  obtaining  a  better  organisation  and 
adjustment  of  the  American  judicial  system. 
His  statement  of  the  standards  which  should 
prevail  in  the  interpretation  of  statutes  will 
long  be  quoted  as  a  classic  exposition  of  the 
judicial  function  in  a  democracy  and  of  the 
forward-looking  spirit  which  has  come  more 
and  more  to  pervade  the  law : 

I  like  to  think  of  the  courts  as  in  the  truest 
sense  the  expert  agents  of  democracy,  express 
ing  deliberate  judgment  under  conditions  essen 
tial  to  stability,  and  therefore  in  their  proper 
action  the  necessary  instrumentalities  of  prog 
ress.  We  are  constantly  reminded  of  the  fact 
that  legislation,  even  when  making  important 
changes,  is  new  only  in  part.  It  cannot  escape 
its  roots.  In  providing  what  is  new,  it  also 
brings  forward  what  is  old.  Concepts  long  fa- 

262 


"  EXPERT  AGENTS  OF  DEMOCRACY  "  263 

miliar  in  the  law  are  introduced  into  new  stat 
utes;  language  can  hardly  be  used  otherwise, 
despite  crudities  in  drafting,  and  in  nearly 
every  line  is  a  connection  with  the  past  which 
demands  the  expert  judicial  interpreter.  And 
further,  what  may  seem  at  the  time  to  be  an 
abrupt  or  catastrophic  change  takes  ultimately 
its  place  in  legal  history,  when  causes  and  ef 
fects  are  better  understood,  as  a  natural  evolu 
tion.  It  is  undoubtedly  the  duty  of  the  courts 
to  construe  legislation  according  to  the  intent 
of  the  Legislature.  But  the  question  remains, 
What  is  the  intent  of  the  Legislature!  The 
man  in  the  street  will  tell  you  at  once  what  it  is, 
but  when  you  put  the  case  to  him  in  its  details 
he  hesitates.  What  seemed  clear  becomes 
doubtful  as  the  particular  application  to  con 
crete  facts  is  faced.  Much  that  arises  in  the 
controversies  which  the  courts  must  decide  was 
not  or  could  not  have  been  foreseen  and  actual 
intent  to  deal  with  it  was  lacking.  There  is  no 
one  who  has  had  anything  to  do  with  legislation 
but  knows  how  various  are  the  views  inducing 
votes,  and  it  is  recognised  that  it  would  be 
highly  unsafe  to  take  even  expressions  in  de 
bate  as  representing  the  opinions  of  others 
whose  concurrence  was  necessary  to  the  passage 
of  the  measure.  The  intent  of  the  Legislature 
is  sometimes  little  more  than  a  useful  legal  fic 
tion,  save  as  it  describes  in  a  general  way  cer 
tain  outstanding  purposes  which  no  one  dis 
putes,  but  which  are  frequently  of  little  aid  in 
dealing  with  the  precise  points  presented  in 
litigation.  Moreover,  legislative  ambiguity 
may  at  times  not  be  wholly  unintentional.  It  is 


264  CHAELES  E.  HUGHES 

not  to  be  forgotten  that  important  legislation 
sometimes  shows  the  effect  of  compromises 
which  have  been  induced  by  exigencies  in  its 
progress,  and  phrases  with  a  convenient  vague 
ness  are  referred  to  the  courts  for  appropriate 
delimitation,  each  group  interested  in  the 
measure  contending  that  the  language  adopted 
embodies  its  views.  Legislation  does  not  exe 
cute  itself;  very  rarely  does  it  fully  explain 
itself;  and  with  the  legislative  word,  in  order 
to  make  it  effective,  must  go  the  judicial  judg 
ment.  How  important  this  work  is  in  connec 
tion  with  recent  legislation  is  at  once  appar 
ent.  For  it  is  through  the  courts  that  consist 
ency  and  symmetry  will  be  given  to  new  depart 
ments  of  law. 

I  have  said  that  every  statute  shows  its  con 
nection  with  the  past  and  contains  in  its  lan 
guage  references  to  familiar  legal  concepts,  but 
the  work  of  interpretation  cannot  faithfully  be 
performed  in  a  technical  spirit  which  would 
sacrifice  the  growing  substance  of  the  law  to  a 
lifeless  formalism.  Nor  can  it  in  linking  the 
future  with  the  past  ignore  the  evident  purpose 
of  many  legislative  changes.  Thus,  in  the  case 
of  our  Uniform  State  Laws,  formulated  and 
adopted  with  the  purpose  of  unifying  the  com 
mercial  law  of  the  country,  nothing  could  be 
more  lamentable  than  to  treat  the  Uniform  Act 
as  an  outgrowth  of  the  separate  law  of  the 
State  and  through  conflicting  interpretations  to 
create  a  new  diversity  in  place  of  the  desired 
unity.  It  is  an  old  maxim  that  in  construing 
statutes  the  court  should  consider  the  old  law, 
the  mischief  and  the  remedy.  The  maxim  has 


"EXPEET  AGENTS  OF  DEMOCRACY"  265 

become  so  hackneyed  that  its  fine  quality  is 
often  not  perceived.  It  calls  for  a  statesman 
like  appreciation  of  past,  present  and  future, 
through  which  alone  the  judge  can  meet  his 
responsibilities  as  the  interpreter  of  legislation 
in  the  expanding  life  of  democracy.  In  judi 
cial  tribunals,  the  Legislature  is  happily,  though 
somewhat  mythically,  personified  as  possessed 
of  all  accessible  information,  learned  in  the  law 
of  the  past,  wise  to  the  point  of  infallibility  in 
matters  of  legislative  discretion,  generally 
using  legal  language  with  legal  acumen  and  cer 
tainty  and  imbued  with  the  spirit  of  unfailing 
consistency.  The  intent  of  this  ideal  legislative 
intelligence  is  found  in  the  words  it  employs, 
and  when  found  must  be  faithfully  applied ;  and 
the  general  success  of  the  courts  in  this  ardu 
ous  endeavour  is  shown  by  the  fact  that  al 
though  the  Legislature  is  always  free  to  re 
pudiate  any  misconstruction  of  its  purpose, 
such  action  is  rarely  taken. 

"A  tendency  .  .  .  opposed  to  a  proper  con 
ception  of  the  function  of  the  Courts, "  in  the 
opinion  of  Justice  Hughes,  is  that 

.  .  .  which  denies  to  judges  the  authority  which 
would  seem  to  be  needed  for  the  efficient  dis 
charge  of  judicial  duty.  Thus  in  some  juris 
dictions  the  freedom  of  the  judge  in  instructing 
the  jury  is  very  considerably  curtailed  in  a 
manner  which  betrays  a  regrettable  distrust. 
This  of  course  carries  the  lesson  of  the  extreme 
importance  of  such  conduct  on  the  part  of  our 
judges  as  will  commend  their  office  to  the  com- 


266  CHAELES  E.  HUGHES 

inanity  they  serve.  But  I  venture  to  say  that 
no  intelligent  citizen  has  ever  taken  part  as  a 
juryman  in  a  trial  over  which  presided  a  thor 
oughly  competent  judge,  who  swiftly,  fairly  and 
firmly  applied  the  law,  extricating  the  essential 
merits  of  the  controversy  from  the  confusing 
details  of  testimony  and  argument,  without 
profound  respect  for  the  expert  knowledge  and 
trained  capacity  which  successfully  meets  a  test 
so  severe.  There  can  be  no  respect  for  the  law 
without  competent  administration,  and  there 
can  be  no  competent  administration  without 
adequate  power.  We  shall  never  rise  to  our 
opportunities  in  this  country  and  secure  a 
proper  discharge  of  the  public  business  until  we 
get  over  our  dislike  of  experts ;  and  the  difficul 
ties  in  the  way  of  needed  improvements  in  the 
administration  of  justice  will  not  be  overcome 
by  tying  the  hands  of  those  most  competent 
to  deal  with  them. 

On  the  vital  topic  of  betterment  in  the  me 
chanics  of  court  procedure,  Justice  Hughes  con 
tinued  by  saying : 

And  this  leads  me  to  speak  briefly,  in  con 
clusion,  of  the  urgent  needs  of  reform  in  judi 
cial  procedure.  If  I  may  be  permitted  to  speak 
with  the  liberty  of  a  member  of  this  association, 
I  am  very  glad  that  at  last  the  time  has  arrived 
when  we  may  reasonably  expect  radical  changes 
in  our  procedural  law.  We  have  very  unneces 
sary  differences  with  respect  to  different 
courts.  The  essentials  of  procedure  are  simple, 
and  they  should  conform  to  one  simple  type, 


"EXPEBT  AGENTS  OF  DEMOCBACY"  267 

with,  only  such,  modifications  as  are  necessary 
to  adapt  it  to  differences  in  jurisdiction.  "We 
have  become  accustomed  to  a  network  of  legis 
lative  rules  of  practice  which  in  their  complex 
ity  are  a  reproach  to  the  State.  The  remedy, 
I  believe,  is  to  replace  these  rules  with  a  few 
statutory  provisions  forming  the  basis  of  pro 
cedure,  leaving  all  the  details  to  be  supplied 
by  rules  of  court.  The  important  equity  prac 
tice  of  the  Federal  courts  of  the  country  is 
governed  without  difficulty  by  a  few  rules  pro 
mulgated  by  the  Supreme  Court.  There  is  no 
other  way,  it  seems  to  me,  to  give  the  requisite 
simplicity  and  elasticity  to  procedure.  There 
may  be  a  prejudice  among  lawyers  to  commit 
ting  this  power  to  the  Bench,  because  of  the  fear 
that  rules  of  practice  will  be  removed  from  the 
range  of  the  just  influence  of  the  Bar.  This  I 
think  is  a  misapprehension.  It  would  be  far 
easier  to  convince  a  court  of  the  necessity  of  a 
change  in  its  rules  than  to  convince  the  Legis 
lature,  while,  on  the  other  hand,  unnecessary 
tinkering  would  be  made  more  difficult.  When 
the  Federal  equity  rules  were  adopted  commit 
tees  of  lawyers  were  appointed  through  the  cir 
cuit  judges  of  each  circuit,  and  thus  the  expert 
opinion  of  the  entire  country  was  obtained,  to 
the  great  advantage  of  those  engaged  in  formu 
lating  the  rules.  Instead  of  being  withdrawn 
from  the  influence  of  lawyers,  the  regulation  of 
practice  by  rules  of  court  would  permit  that  in 
fluence  to  be  exerted  in  the  most  intelligent  man 
ner.  Proposed  changes  would  emerge  from  the 
discussions  of  Bar  associations  and  would  be 
presented  finally  to  those  who  were  most  sensi- 


268  CHAELES  E.  HUGHES 

tive  to  professional  opinion  and  most  compe 
tent,  by  reason  of  constant  experience,  to  pass 
upon  the  questions  submitted.  In  this  way  the 
rigidity  of  statutory  enactments  will  be  avoided 
and  judicial  procedure  will  cease  to  be  the  mere 
sport  of  those  whose  game  is  to  avoid  decisions 
on  the  merits. 

Justice  in  the  minor  courts — the  only  courts 
that  millions  of  our  people  know — administered 
without  favouritism  by  men  conspicuous  for 
wisdom  and  probity  is  the  best  assurance  of 
respect  for  our  institutions.  The  administra 
tion  of  commercial  law  by  recognised  experts  in 
a  direct  fashion  appropriate  to  the  subject  is 
needed  quite  as  much  as  uniform  State  acts  to 
commend  the  law  to  practical  men  of  affairs. 
The  stripping  of  criminal  procedure  of  needless 
requirements,  without  impairing  the  security  of 
innocence,  and  in  general  the  fearless  destruc 
tion  of  provisions  which  only  embarrass  the 
just  disposition  of  controversies,  should  not  be 
long  delayed. 

Quotation  at  length  from  this  address  has 
seemed  warranted,  because  these  excerpts  re 
veal,  more  accurately  than  anything  except  a 
detailed  examination  of  many  volumes  of  the 
official  reports  by  a  trained  legal  mind  could 
do,  the  spirit  which  seemed  to  dominate  and 
distinguish  the  public  service  of  Mr.  Hughes 
in  the  Supreme  Court.  To  him,  the  law  was  a 
vital,  reasonable,  living  instrumentality — not 
an  end  in  itself,  not  a  tradition  to  be  cherished 
or  preserved  for  its  own  sake — not  a  substi- 


"EXPERT  AGENTS  OF  DEMOCRACY"  269 

tute  for  the  mature  judgment  of  the  people, 
but  their  "living  voice, "  and  the  courts  their 
most  expert  aid  and  accurate  expositor.  As  it 
seems  that  he  saw  it,  an  accused  person  should 
be  assured,  at  every  cost  and  hazard,  every 
essential  of  a  fair  trial  on  the  merits,  with  the 
full  benefit  of  every  proper  presumption;  but 
the  public  also  had  rights — the  right,  as  he 
stated  it,1  "at  all  times  to  take  proper  measures 
to  prevent  the  perversion  of  its  legal  ma 
chinery  ";  the  right  to  see  to  it  that  no  subter 
fuges  and  artifices  and  no  incidents  of  trial  2 
that  stop  short  of  actual  prejudice,  are  per 
mitted  either  to  defeat  or  delay  a  just  deter 
mination  on  the  real  merits ;  the  right  to  go  for 
ward  and  put  in  force  such  new,  direct  and  hu 
manitarian  methods  of  administration  as  a  pa 
tient  experience  from  time  to  time  shows  to  be 
consonant  with  the  fundamentals  of  fair  adju 
dication. 

He  could  not  accept  the  contention  that  the 
Fourteenth  Amendment,  with  its  requirement 
of  ."due  process"  coming  down  from  the  con 
flicts  of  European  tyrannies,  fastened  upon  this 
day  and  generation  the  precise  methods,  for 
mulae,  institutions,  or  procedural  concepts 
which  were  held  when  our  Constitutions  were 

1  Fraternal  Mystic  Circle  vs.  Snyder  (227  U.  S.  Eeports, 
page  503). 

3  Illinois  Cent.  E.  E.  Co.  vs.  Skaggs  (240  U.  S.  Eeports, 
page  66)  ;  Eerencia  vs.  Guzman  (219  U.  S.  Eeports,  page  44) ; 
Norfolk  $  W.  By.  Co.  vs.  Holbrook  (235  U.  S.  Eeports,  page 
625). 


270  CHARLES  E.  HUGHES 

adopted.  In  Graliam  against  West  Virginia? 
the  Supreme  Court  was  asked  to  condemn,  un 
der  the  "due  process"  clause,  a  West  Virginia 
statute  based  upon  some  recommendations  of 
what  is  referred  to  as  "the  new  penology." 
The  statute  provided  a  new  system  for  the 
identification  of  ' '  second  offenders ' ' ;  it  made  a 
start  in  the  direction  of  a  better  way  of  ascer 
taining  the  identity  and  separately  determin 
ing  the  guilt  of  those  who  had  been  hitherto 
convicted  of  crime.  Mr.  Justice  Hughes 
brushed  aside  the  contention  that  this  withheld 
"due  process"  or  denied  "the  equal  protection 
of  the  laws,"  saying: 

The  Fourteenth  Amendment  is  not  to  be  con 
strued  "as  introducing  a  factitious  equality 
without  regard  to  practical  differences  that  are 
best  met  by  corresponding  differences  of  treat 
ment."  ...  A  State  may  make  different  ar 
rangements  for  trials  under  different  circum 
stances  of  even  the  same  class  of  offences  .  .  . 
and  certainly  it  may  suitably  adapt  to  the  exi 
gency  the  method  of  determining  whether  a 
person  found  guilty  of  crime  has  previously 
been  convicted  of  other  offences.  All  who  were 
in  like  case  with  the  plaintiff  in  error  were 
subject  to  the  same  procedure.  He  belonged 
to  a  class  of  persons  convicted  and  sentenced  to 
the  penitentiary  whose  identity  as  former  con 
victs  had  not  been  determined  at  the  time  of 
their  trial.  As  to  these,  it  was  competent  for 

*224  U.  S.  Eeports,  page  616. 


"EXPERT  AGENTS  OF  DEMOCRACY"  271 

the   State  to  provide  appropriate  means  for 
determining  such  identity. 

He  was  impatient  with  suggestion  that  the 
Constitution  should  be  construed  to  prevent  the 
punishment  of  men  whom  a  fair  trial  would 
send  to  punishment,  unless  such  construction 
were  successfully  invoked  in  their  behalf. 
"The  Constitution  of  the  United  States  is  not 
intended  as  a  facility  for  crime/'  declared  he 
with  vehemence,  in  Brown  against  Elliott* 
where  artful  issues  of  venue  and  jurisdiction 
were  invoked  to  forestall  the  condemnation  of 
men  charged  with  conspiracy  to  defraud.  "It 
is  intended  to  prevent  oppression,  and  its  letter 
and  spirit  are  satisfied  if,  where  a  criminal 
purpose  is  executed,  the  criminal  purpose  is 
punished. ' ' 

His  inclinations  seemed,  in  fairness,  to  be 
ever  to  give  a  construction  to  statutes  which 
would  ensure  their  efficacy  for  the  intended  pur 
poses  and  enable  legal  machinery  to  cut  directly 
through  to  a  determination  of  the  merits  under 
all  the  existent  and  relevant  facts.  He  was  not 
impressed  ^wlth  ingenious  reasons  why  those 
accused  of  crimes  against  the  public  rights 
should  be  permitted,  in  effect,  to  withhold  books 
and  papers  which  would  have  important  bear 
ing  upon  the  question  of  their  innocence  or  guilt 
in  fact.  All  he  wanted  was  the  eliciting  of  the 
facts,  and  then  a  fair  determination  on  the  facts 

1 225  U.  S.  Eeports,  page  402. 


272  CHAELES  E.  HUGHES 

and  law.  When  Christopher  C.  Wilson,  versa 
tile  president  of  the  United  Wireless  Company 
of  Maine  and  the  universe,  was  indicted  for 
fraudulent  use  of  the  mails,  among  other  things, 
the  Federal  Grand  Jury,  in  the  course  of  its 
continued  investigations,  developed  a  pardon 
able  interest  as  to  the  contents  of  the  books  of 
the  corporation  in  very  pertinent  respects. 
Wilson  was  subpoenaed  to  produce  them,  and 
his  able  counel  developed  a  multitude  of  arti 
ficial  reasons  why  the  books  should  not  be  dis 
closed  to  the  matter-of-fact  curiosity  of  a  grand 
jury  seeking  whom  else  it  ought  to  indict  on 
United  Wireless  transactions.  In  this  and  simi 
lar  cases,1  Justice  Hughes  made  short  shrift  of 
objections.  In  the  Wilson  case,  he  said: 

The  appellant  held  the  corporate  books  sub 
ject  to  the  corporate  duty.  If  the  corporation 
were  guilty  of  misconduct,  he  could  not  with 
hold  its  books  to  save  it ;  and  if  he  were  impli 
cated  in  the  violation  of  law,  he  could  not  with 
hold  the  books  to  protect  himself  from  the  effect 
of  their  disclosures.  The  reserved  power  of 
visitation  would  seriously  be  embarrassed,  if 
not  wholly  defeated  in  its  effective  exercise,  if 
guilty  officers  could  refuse  inspection  of  the 
records  and  papers  of  the  corporation.  No  per 
sonal  privilege  to  which  they  are  entitled  re 
quires  such  a  conclusion.  It  would  not  be  a 

1  Wilson  vs.  U.  S.  (221  U.  S.  Reports,  page  361)  ;  Dreier  vs. 
U.  S.  (221  U.  S.  Reports,  page  394);  Grant  vs.  U.  S.  (227 
U.  S.  Reports,  page  74) ;  American  Lithograph  Co.  vs.  Werck- 
meister  (221  U.  S.  Reports,  page  603). 


"EXPEKT  AGENTS  OF  DEMOCRACY"  273 

recognition,  but  an  unjustifiable  extension,  of 
the  personal  rights  they  enjoy.  They  may  de 
cline  to  utter  upon  the  witness  stand  a  single 
self -criminating  word.  They  may  demand  that 
any  accusation  against  them  individually  be 
established  without  the  aid  of  their  oral  tes 
timony  or  the  compulsory  production  by  them 
of  their  private  papers.  But  the  visitatorial 
power  which  exists  with  respect  to  the  corpora 
tion  of  necessity  reaches  the  corporate  books 
without  regard  to  the  conduct  of  the  custodian. 
Nor  is  it  an  answer  to  say  that  in  the  present 
case  the  inquiry  before  the  grand  jury  was  not 
directed  against  the  corporation  itself.  The 
appellant  had  no  greater  right  to  withhold  the 
books  by  reason  of  the  fact  that  the  corpora 
tion  was  not  charged  with  criminal  abuses. 
That,  if  the  corporation  had  been  so  charged, 
he  would  have  been  compelled  to  submit  the 
books  to  inspection,  despite  the  consequences  to 
himself,  sufficiently  shows  the  absence  of  any 
basis  for  a  claim  on  his  part  of  personal  privi 
lege  as  to  them;  it  could  not  depend  upon  the 
question  whether  or  not  another  was  accused. 
The  only  question  was  whether  as  against  the 
corporation  the  books  were  lawfully  required 
in  the  administration  of  justice.  When  the  ap 
pellant  became  president  of  the  corporation  and 
as  such  held  and  used  its  books  for  the  trans 
action  of  its  business  committed  to  his  charge, 
he  was  at  all  times  subject  to  its  direction,  and 
the  books  continuously  remained  under  its  con 
trol.  If  another  took  his  place  his  custody 
would  yield.  He  could  assert  no  personal  right 
to  retain  the  corporate  books  against  any  de- 


274  CHARLES  E.  HUGHES 

mand  of  government  which  the  corporation  was 
bound  to  recognise. 

In  Arizona  $  New  Mexico  Ey.  Co.  <against 
Clark?  a  verdict  had  been  obtained  in  a  negli 
gence  action,  after  a  trial  on  which  the  plaintiff 
testified  freely  and  at  length  regarding  his 
bodily  condition,  and  also  called  his  nurse  as  a 
witness  in  his  behalf,  on  the  question  of  the 
extent  of  his  injuries.  His  testimony  covered 
the  time  when  he  was  under  a  doctor 's  care, 
and  the  defendant  sought  subsequently  to  in 
troduce  the  doctor's  testimony  as  to  the  condi 
tions  which  he  found,  upon  examinations  of  the 
plaintiff  and  during  treatment.  Upon  the 
plaintiff's  objection,  the  trial  court  refused  to 
let  the  jury  have  the  benefit  of  the  doctor's 
testimony,  on  the  ground  that  an  Arizona  stat 
ute  provided  that ' i  a  physician  or  surgeon  can 
not  be  examined,  without  the  consent  of  his  pa 
tient,  as  to  any  communication  made  by  his  pa 
tient  ...  or  any  knowledge  obtained  by  a  per 
sonal  examination  of  such  patient;  provided, 
that  if  a  person  offer  himself  as  a  witness  and 
voluntarily  testify  with  reference  to  such  com 
munications,  that  is  to  be  deemed  a  consent  to 
the  examination  of  such  physician." 

The  majority  of  the  Supreme  Court  held 
that,  despite  the  testimony  of  the  plaintiff  and 
his  nurse,  there  was  no  waiver  of  the  plain 
tiff's  right  to  restrain  his  physician  from  tes- 

1 235  U.  S.  Reports,  page  669. 


"EXPEBT  AGENTS  OF  DEMOCRACY"  275 

tifying  as  to  " knowledge  obtained  by  a  personal 
examination  of  such  patient. "  The  minority  of 
the  Court  did  not  think  this  ruling  conduced  to 
giving  the  jury  fairly  the  benefit  of  the  facts, 
and  so,  in  an  opinion  written  by  Justice 
Hughes,  they  declared: 

It  should  be  supposed  that  it  was  the  legis 
lative  intent  to  protect  the  patient  in  preserving 
secrecy  with  respect  to  his  ailments  and  not  to 
give  him  a  monopoly  of  testimony  as  to  his  con 
dition  while  under  treatment.  ...  To  permit 
him,  while  thus  disclosing  his  physical  disorders 
(through  the  testimony  of  himself  and  his 
nurse),  to  claim  a  privilege  in  order  to  protect 
himself  from  contradiction  by  his  physician  as 
to  the  same  matter,  would  be,  as  it  seems  to 
me,  so  inconsistent  with  the  proper  administra 
tion  of  justice  that  we  are  not  at  liberty  to  find  a 
warrant  for  this  procedure  in  the  statute  unless 
its  language  prohibits  any  other  construction. 

In  City  of  Memphis  against  the  Cumberland 
Telephone  and  Telegraph  Company?  what 
seemed  to  be  technicalities  of  procedure  and 
the  record  were  invoked  to  sustain  a  result  far 
short  of  a  determination  on  the  merits  of  the 
question  really  at  issue,  and  Justice  Hughes 
aligned  himself  again  with  a  minority  of  the 
Court  in  behalf  of  what  seemed  to  him  the  rule 
more  in  accord  with  the  fair  meaning  of  the 
statute  and  the  public  rights  involved.  The 

*218  U.  S.  Reports,  page  624. 


276  CHARLES  E.  HUGHES 

Circuit  Court  had  enjoined  the  enforcement  of 
an  ordinance  of  the  City  of  Memphis  which 
sought  to  regulate  the  telephone  rates  charged 
by  the  complainant  company.  The  bill  for  in 
junction  had  alleged  that  the  ordinances  and 
rates  complained  of  were  unauthorised  and 
illegal,  and  were  discriminatory  and  confisca- 
tory;  the  opinion  of  the  Circuit  Court  stated 
that  the  result  of  the  ordinances  was  "destruc 
tive  of  the  complainant's  rights  under  the  Fed 
eral  Constitution ";  and  the  enforcement  of  the 
ordinances  was  halted.  On  the  appeal  of  the 
City  to  the  Supreme  Court,  counsel  for  the 
company  successfully  urged  that  the  allegations 
of  the  bill  must  be  construed  as  referring  only 
to  the  State  Constitution  and  that  nothing  in 
the  record  showed  that  a  Federal  question  had 
been  passed  upon  or  was  presented  by  the  bill 
filed  by  the  company.  Therefore  it  was  con 
cluded  that  there  was  no  jurisdiction  or  basis 
for  the  taking  of  jurisdiction  by  the  Supreme 
Court  to  review  the  action  of  the  Federal  Court, 
there  being  no  "Federal  question"  involved, 
and  the  appeal  was  dismissed.  Thereby  was 
continued  in  effect  the  injunction,  based  wholly 
or  in  part  upon  the  Federal  Constitution,  as  the 
opinion  of  the  Court  would  have  disclosed,  had 
the  majority  felt  that  they  had  a  right  to  read 
the  opinion  in  order  to  learn  the  basis  on  which 
the  injunction  had  been  granted  below. 

Justice   Hughes   was   one   of   the   minority 
judges  who  felt  that  it  was  absurd  for  the  Su- 


"EXPERT  AGENTS  OF  DEMOCRACY"  277 

preme  Court  to  refuse,  on  the  ground  that  no 
Federal  question  was  involved,  to  consider  the 
correctness  of  a  decision  by  the  Circuit  Court 
that  the  ordinances  enjoined  were  "destructive 
of  the  complainant's  rights  under  the  Federal 
Constitution"  and  were  accordingly  to  be  en 
joined.  The  minority  contended  that  the  opin 
ion  below,  as  well  as  the  bill,  was  a  part  of  the 
record,  and  could  be  freely  consulted,  in  good 
sense,  to  see  if  a  reviewable  issue  was  in  fact 
decided  below.  Where  the  Court  below  had  en 
joined  the  enforcement  of  a  municipal  ordi 
nance  by  deciding  a  question  of  Federal  consti 
tutionality  and  right  adversely  to  the  munici 
pality,  the  minority  thought  that  the  Supreme 
Court  had  power  and  duty  to  review  and  cor 
rect  the  error  committed  by  the  Court  below 
and  dissolve  the -injunction,  regardless  whether 
such  error  arose  from  a  wrong  decision  of  the 
Federal  question  actually  passed  upon  or  from 
a  mistake  in  assuming  that  the  Federal  ques 
tion  was  before  it  for  decision. 

The  most  notable  opinion  which  Justice 
Hughes  prepared  upon  a  procedural  and  law- 
reform  topic  was  in  Slocum  against  the  New 
York  Life  Insurance  Company \l  It  was  a  dis 
senting  opinion,  and  with  him  concurred  Jus 
tices  Holmes,  Lurton  and  Pitney.  The  question 
came  up  in  this  manner :  The  plaintiff  had  re 
covered  a  verdict  on  a  life  insurance  policy, 
after  trial  in  a  Federal  Court  in  Pennsylvania, 

>228  U.  S.  Eeports,  page  364. 


278  CHARLES  E.  HUGHES 

before  the  Court  and  a  jury.  On  appeal,  the 
central  issue  in  the  case,  as  to  whether  the  pol 
icy  was  in  law  and  fact  in  force  at  the  time  of 
the  death  of  the  insured,  was  determined  in  the 
negative  by  the  Circuit  Court  of  Appeals.  In 
consequence,  it  became  certain  that  in  no  event 
could  the  plaintiff  recover  upon  the  policy  in 
suit,  and  that  a  repetition  of  the  trial  would  be 
only  a  waste  of  time  for  the  litigants  and  a 
burden  upon  those  who  pay  the  revenues  which 
maintain  the  Courts.  Under  one  of  the  "  prac 
tical  reforms"  instituted  in  the  Pennsylvania 
State  Courts1  "for  facilitating  business  with 
out  impairing  settled  legal  principles,"  a  State 
appellate  Court  was  authorised,  where  it  ap 
peared  clearly  that  the  plaintiff  could  not,  as  a 
matter  of  law,  possibly  recover  as  result  of  a 
re-trial  of  the  case,  to  end  the  matter  and  avoid 
further  expense,  by  directing  then  and  there  the 
ultimate  verdict  which  would  be  inevitable  if 
the  case  went  back  for  re-trial  nominally  be 
fore  a  jury,  although  with  no  prospect  that  the 
case  could  ever  again  go  to  the  jury  or  that 
another  verdict  for  the  plaintiff  could  possibly 
stand,  under  the  law  of  the  case  as  settled  by 
the  appellate  Court.  Under  the  familiar  rules 
by  which  Federal  Courts  within  a  State  are 
governed  by  the  State  procedure  and  practice 
as  to  purely  procedural  matters,  the  Circuit 
Court  of  Appeals  felt  authorised  to  follow  in 
the  case  at  bar  the  salutary  Pennsylvania  prao- 

lDalmas  vs.  Kemble  (215  Pa.  State  Keports,  page  410). 


. . 


EXPERT  AGENTS  OF  DEMOCRACY "  279 


tice,  and  so  directed  a  verdict  for  the  defend 
ant,  without  sending  the  case  back  for  re-trial. 

A  majority  of  one  in  the  Supreme  Court  held 
that  under  the  Seventh  Amendment,  which  as 
sures  right  of  trial  by  jury  in  the  Federal 
Courts,  there  could  be  no  such  direction  of  a 
verdict  by  an  appellate  Court  when  it  reached  a 
decision  that  the  verdict  returned  by  the  jury 
must  be  set  aside  and  a  rule  of  law  declared 
which  will  preclude  the  possibility  of  the  plain 
tiff's  ultimate  recovery  in  the  action.  The  ma 
jority  of  the  Court  held  that  trial  by  jury  was  a 
substantial  right,  and  that  it  included  the  right 
to  trial  before  a  jury  every  time  the  case  was 
to  be  determined,  and  that  the  appellate  Court 
could  not,  even  in  the  interests  of  directness 
and  simplicity,  itself  determine  questions  of 
fact. 

Four  Justices  of  the  Court,  for  whom  Jus 
tice  Hughes  wrote  the  memorandum  of  dissent, 
contended  strongly  that  the  Pennsylvania  prac 
tice  was  valid  and  beneficial,  and  that  the  Sev 
enth  Amendment  was  no  bar  to  such  a  pro 
cedural  reform.  Justice  Hughes  argued  ear 
nestly  against  the  majority  opinion,  on  the 
ground  that 

...  it  erects  an  impassable  barrier — unless 
the  Constitution  be  amended — to  action  by  Con 
gress  along  the  same  line  for  the  purpose  of 
remedying  the  mischief  of  repeated  trials  and 
of  thus  diminishing  in  a  highly  important  de- 


280  CHARLES  E.  HUGHES 

gree  the  delays  and  expense  of  litigation.  .  .  . 
We  have  here  a  simplification  of  procedure 
adopted  in  the  public  interest  to  the  end  that 
unnecessary  litigation  may  be  avoided.  The 
party  obtains  the  judgment  which  in  law  he 
should  have  according  to  the  record.  I  submit, 
with  deference,  that  in  now  condemning  this 
practice,  long  followed  in  the  Courts  below,  this 
Court  is  departing  from,  instead  of  applying, 
the  principles  of  the  common  law,  and  is  ex 
tending  rather  than  enforcing  the  constitutional 
provision. 

The  necessary  limitations  in  the  length  of 
this  volume  have  prevented  quotation  from 
some  of  the  opinions  filed  by  Justice  Hughes 
and  have  curtailed  comment  upon  others.  In 
the  appendices,  however,  all  of  the  opinions 
which  he  rendered  in  behalf  of  the  Court,  and 
all  of  the  views  expressed  by  him  in  dissent  from 
those  of  the  majority  of  his  colleagues,  have 
been  summarized,  and  his  entire  judicial  record 
may  there  be  scrutinized,  in  so  far  as  the  same 
is  revealed  by  rendered  opinions.  It  is,  of 
course,  as  has  been  said,  "an  unfortunate 
feature  of  public  work,  in  any  department,  that 
it  is  very  difficult  to  interpret  it  in  all  its  details 
to  the  people  wrhose  service  is  being  per 
formed";  but  it  would  seem  that  from  the  judi 
cial  utterances  of  Justice  Hughes  there  is  re 
flected  a  view  of  National  life  and  power  which 
grows  and  changes  through  the  years  and  gives 
ever-suitable  vitality  to  National  and  State  sov- 


"EXPERT  AGENTS  OF  DEMOCRACY"  281 

ereignties  alike;  a  conviction  that,  as  Henry 
George  said,  1 1  social  reform  is  not  to  be  secured 
by  noise  and  shouting;  by  complaints  and  de 
nunciation;  by  the  formation  of  parties  or  the 
making  of  revolutions;  but  by  the  awakening 
of  thought  and  the  progress  of  ideas";  a  real 
ization  that  in  this  Nation  and  under  the  Fed 
eral  Constitution — a  Nation  and  Constitution 
composing  perhaps  the  greatest  of  all  human 
innovations  and  experiments — the  way  must  be 
kept  ever  open  for  patient,  accurate  examina 
tion  of  facts  as  from  time  to  time  developed, 
and  then  free-spirited  following  of  the  facts  to 
their  fair  conclusions — open  also  for  political 
and  social  as  well  as  purely  mechanical  experi 
mentation  and  discovery.  And  we  gain  also  a 
vision  of  a  day  when  jurisprudence  and  states 
manship  shall  join  hands  to  "put  the  human 
factor  in  the  central  place "  in  government,  and 
"Ring  put  the  feud  of  rich  and  poor; 
Ring  in  redress  to  all  mankind." 


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and  reimbursement  of  expense 
he  holds  the  surplus,  not  as  a  t 
but  as  a  debtor,  of  the  United 


and  emol 
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tisfaction  with  the  jury's 
does  not  empower  the  Su 
to  reverse  on  a  writ  of 
ere  was  evidence  proper  f< 
deration  of  the  jury. 


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While  its  immediate  concern  was  A 
rican  slavery,  the  Thirteenth  Amend 
ment  was  a  charter  of  universal  civi 
freedom  for  all  persons  of  whateve 
race,  colour  or  estate  under  the  flag 
the  Constitutional  prohibitio  gains 
all  control  by  coercion  of  per 
sonal  service  of  one  man  for  bene 
fit  of  another,  cannot  be  trresse 
indirectly,  by  creating  a  utory 
presumption,  any  more  than  direct 


284 


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has 
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place  where  he  manufactures  the  i 
tide  to  designate  the  article  itse 
if  that  name  has  been  validly  reg 
tered  as  a  trade-mark  here. 

A  corporation  defendant,  in  a  suit 
enforce  penalties  for  infringement 
copyright,  is  not  entitled  under  1 
Fourth  or  Fifth  Amendment  to  < 
ject  to  the  admission  of  evidence 
entries  in  its  books  produced  unde] 
subpoena  duces  tecum. 

The  length  of  hours  of  service 
railroad  employes  having  a  direct 
lation  to  the  efficiency  of  the  hum 
agencies  upon  which  the  safety  a 
protection  of  passengers  and  pr< 
erty  depend  Congress  has  power 
make  reasonable  regulations  and 
require  the  carriers  to  report  in 
gard  thereto,  and  such  regulati< 
are  not  invalidated  by  the  fact  tl 
they  relate  or  apply  to  railroads  a 
employes  engaged  in  intrastate  bi 
ness. 

288 


of 

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ining  whether  diversity 
p  exists  to  give  jurisdict 
it  Court  should  arrange  e 
with  respect  to  the  actual  con 
and  their  actual  position 
as  complainants  or  defend 
oking  beyond  the  formal  ar 
nts  made  b  the  bill. 


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Substance  of  Holding. 

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Where  a  person  whose  name  appeared 
on  the  rolls  of  the  Choctaw  Indians 
died  after  the  ratification  of  the 
agreement  of  distribution,  and  before 
receiving  the  allotment,  the  land 
passed  at  once  to  his  heirs,  and  the 
U.  S.  cannot  maintain  an  action  to 
set  aside  conveyances  made  by  the 
heirs  within  the  period  of  restric 
tion  applicable  to  homestead  allot 
ments  made  to  members  of  the  tribe 
during  life. 

The  U.  S.  is  entitled  to  maintain  an 
action  to  set  aside  a  conveyance  made 
by  Seminole  Freedmen  of  homestead 
lands,  of  surplus  lands  made  by 
minor  allottees,  and  by  adult  allottees 
if  made  prior  to  April  21,  1904,  but 
not  conveyances  made  by  adult  al 
lottees  after  April  21,  1904. 

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292 


Goat  v.  United  States  (supra)  fol 
lowed,  in  regard  to  the  validity  of 
conveyances  of  lands  allotted  to  Sem- 
inole  Indians  and  the  right  of  the 
U.  S.  to  maintain  actions  to  set  aside 
such  conveyances. 

Congress  has  power  to  make  effec 
tive  the  Indemnity  Plan  covered  by 
the  Employers'  Liability  Act  of  1908, 
by  providing  that  exemptions  from 
liability  shall  be  void,  and  that  the 
acceptance  of  benefits  under  a  relief 
contract,  whether  existing  at  the  time 
of  the  enactment  of  the  statute  or 
not,  shall  not  prevent  recovery  under 
the  Act. 

The  West  Virginia  statute  provid 
ing  for  heavier  penalties  for  persons 
convicted  of  crime,  if  previously  con 
victed,  and  for  determining  the  iden 
tity  of  persons  formerly  convicted  in 
a  manner  separate  from  the  determi 
nation  of  guilt  of  a  first  offence,  is 
constitutional. 

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in  the  Federal  Court  if  ju 
otherwise  exists. 

The  Indiana  statute  regul 
sale  and  requiring  disclosui 
formuke  of  the  ingredients  c 
trated  commercial  food  for 
within  the  legislative  police 
the  State,  even  though  it  : 
dentally  affect  interstate  < 

The  Iowa  Act  of  1907,  re 
sale  of  concentrated  commer 
ing  stuff,  is  constitutional. 

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torney  must  be  produced  by  him  if 
they  are  subpoenaed,  notwithstanding 
his  claim  of  professional  privilege 
and  notwithstanding  his  plea  that 
they  would  incriminate  him. 

The  Tennessee  statute,  authorizing 
the  imposition  upon  insurance  com 
panies  of  an  additional  specified  pro 
portionate  amount  of  the  policy, 
where  the  company  has  interposed  an 
unsuccessful  defence  in  bad  faith,  is 
not  unconstitutional  and  does  not  im 
pair  the  obligation  of  the  contract  be 
tween  the  insured  and  the  company. 

Goods  brought  from  another  State, 
taken  from  the  carrier  and  held  by 
the  owner  with  full  power  of  disposi 
tion,  become  subject  to  local  taxation, 
notwithstanding  an  intent  on  the  part 
of  the  owner  ultimately  to  forward 
the  goods  to  a  destination  outside  the 
State. 

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and  the  Federal  Court  has  jurisdic 
tion,  even  though  the  criminal  was  not 
an  Indian. 

Certain  sections  of  the  California  Con 
stitution  and  the  municipal  ordinances 
of  Los  Angeles  were  ineffectual,  un 
der  the  contract  clause  of  the  Fed 
eral  Constitution,  to  deprive  a  corpo 
ration  which  had  obtained  a  fran 
chise,  before  the  amendment  of  the 
State  Constitution  now  in  force,  of 
its  right  to  continue  to  lay  pipes  in 
the  streets  of  Los  Angeles. 

The  Wisconsin  statute  investing  rail 
way  corporations  with  power  of  emi 
nent  domain  to  condemn  right  of 
way  for  spur  tracks,  is  constitutional, 
even  though  only  one  industry  was  in 
position  to  use  such  spur  at  the  out 
set. 

Sections  39  and  117  of  the  Criminal 
Code,  defining  and  punishing  the  giv 
ing  and  accepting  of  bribes,  cover 
every  action  within  the  range  of  of 
ficial  duty,  whether  or  not  specifically 
prescribed  by  statute. 

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"Bights  become  vested  under  a  mu 
nicipal  franchise  when  the  same  have 
been  exercised  as  well  as.  granted; 
where  there  has  been  a  non-user  for 
an  unreasonable  time,  revocation  by  a 
municipal  authority  does  not  contra 
vene  the  "impairment  of  obligation" 
clause  of  the  Federal  Constitution. 

The  Supreme  Court  is  not  authorised 
to  review  a  judgment  or  decree  of 
the  Circuit  Court  of  Appeals  other 
wise  than  by  a  writ  of  error  or  other 
proceedings  directed  to  that  Court. 

Until  a  stockholder  of  a  corporation 
can  clearly  show  that  he  has  exhaust 
ed  the  means  within  his  reach  to  ob 
tain  action  by  the  corporation  to  re 
strain  the  enforcement  of  a  statute 
which  he  regards  an  an  unconstitu 
tional  deprivation  of  the  property 
rights  of  the  corporation,  he  may  not 
himself  maintain  the  action. 

Although  this  court  has  an  undoubted 
right  of  review  of  the  construction 
which  the  Supreme  Court  of  Okla 
homa  has  placed  upon  a  tribal  law,  it 

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The  California  statute 
venting  the  employmen 
enumerated  occupations 
tel  work,  for  more  ths 
a  day  or  a  maximum 
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rather  than  judicial  control. 

Bona  fide  purchase  for  value  of  a 
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fraud  is  a  defence  which  must  be  af 
firmatively  established,  in  order  to  de 
feat  the  cancellation  of  the  patent. 

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fidavit  required  either  expressly  by 
statute  or  by  an  authorised  regula 
tion  or  long-standing  and  customary 
procedure  of  the  Land  Department, 
will  sustain  an  indictment  for  perjury. 

The  North  Dakota  Legislature  ex 
ceeded  its  authority  in  enacting  a 
statute  which  prescribed  maximum 
intrastate  rates  on  coal  in  carload 
lots  so  low  as  to  require  the  carrier 
to  transport  the  commodity  for  less 
than  the  cost  of  transportation  or 
virtually  at  cost. 

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INDEX 


ADMINISTRATIVE  EFFICIENCY,  Justice  Hughes  quoted  as  to 
standards  of,  221-234. 

ADULTERATION,  of  foods  and  drugs,  101-126. 

ALABAMA,  validity  of  legislation  of,  as  to  employes  breaking 
written  contract  while  in  debt  to  employer,  235-247. 

ALIENS,  Justice  Hughes  quoted  as  to  discrimination  against, 
248-262. 

AMERICANISM,  Justice  Hughes  quoted  as  to  elements  of  an 
unqualified,  248-262. 

ANTI-TRUST  ACTS,  standards  of  unreasonableness  under,  173- 
185. 

ARMY  AND  NAVY,  departmental  discretion  of,  224-225. 

BEVERIDGE,  ALBERT  J.,  as  pioneer  in  fight  for  National  child- 
labour  legislation,  70. 

" BILLS  OF  RIGHTS,"  standards  of  judicial  definition  and  ap 
plication  of,  98  et  seq.;  address  of  Justice  Hughes 
concerning,  quoted,  74-100;  question  of  State  and  Na 
tional  duty  as  to,  194-204. 

BORIC  ACID,  presence  of,  in  "Mrs.  Price's  Canning  Com 
pound,"  117-121. 

BRANDEIS,  Louis  D.,  appointment  as  a  Justice  of  the  Supreme 
Court,  5;  argument  in  Oregon  "minimum-wage"  case, 
138-143;  argument  in  California  "hours  of  labor"  cases, 
162. 

BREWER,  DAVID  J.,  vacancy  caused  by  death  of,  filled  by  ap 
pointment  of  Mr.  Hughes,  2. 

BRYCE,  JAMES,  quoted,  as  to  the  Supreme  Court,  ii;  quoted,  as 
to  John  Marshall,  12. 

BURKE,  EDMUND,  definition  of  a  statesman  by,  applied  to 
Justice  Hughes,  11. 

BUSINESS  QUESTIONS,  outlook  of  Justice  Hughes  upon,  185- 
190;  tariff  laws,  185,  221. 

CAFFEINE,   as  an   ingredient  in   "Coca  Cola,"    106-115. 

CALIFORNIA,  "hours  of  labour"  statute  of,  upheld,  128,  162-163. 

CAMPBELL,  JOHN  ARCHIBALD,  remarks  of  former  Justice,  at 
exercises  in  commemoration  of  Justice  Curtis,  14. 

"CANCERINE,"  opinion  of  Justice  Hughes  as  to  false  state 
ments  regarding  curative  properties,  quoted,  101-104. 
347 


348  INDEX 

"CANNING  COMPOUND/'  opinion  of  Justice  Hughes  as  to  pres 
ence  of  boric  acid  as  a  preservative  in  Mrs.  Price's,  117- 
121. 

CHAMBERLAIN,  MARY,  article  by,  in  the  Survey,  quoted,  137- 
144. 

CHILD-LABOUR  LEGISLATION,  constitutional  views  of  President 
concerning,  vi,  vii;  services  of  Justice  Hughes  as  to  con 
stitutionality  of  National,  70-72;  opinion  of  Justice 
Hughes  in  Illinois  case,  quoted,  83;  further  quoted,  131. 

"CocA  COLA,"  opinion  of  Justice  Hughes  as  to  ingredients  of 
and  application  of  statute  to,  quoted,  106-117. 

COTTON,  JOSEPH  P.,  JR.,  introductory  note  to  "Constitutional 
Decisions  of  John  Marshall,"  quoted,  i;  definition  of 
juristic  attributes,  quoted,  10. 

COURTS,  improvement  of  the  work  of  the,  262-280. 

CRIMINAL  LAW  AND  PROCEDURE,  views  of  Justice  Hughes  as  to, 
269-273. 

CURTIS,  BENJAMIN  E.,  death  of,  as  Justice  of  the  Supreme 
Court,  14. 

DAY,  WILLIAM  E.,  as  Justice  of  the  Supreme  Cpurt,  4-5. 

DE  TOCQUEVILLE,  quoted  as  to  the  Supreme  Court,  ii. 

"DUE  PROCESS,"  conflicting  standards  of  judicial  definition 
of,  75-78;  views  of  Justice  Hughes  as  to  what  elements 
make  procedure  fair,  84-85;  as  to  procedure  of  regulative 
commissions,  92-95. 

"ECKMAN'S  ALTERATIVE,"  opinion  of  Justice  Hughes  as  to 
"mis-branding"  of,  as  tuberculosis  cure,  105-106. 

ELLSWORTH,  OLIVER,  service  as  Commissioner  to  France  with 
out  resignation  as  Chief  Justice,  3. 

EMPLOYERS'  LIABILITY  ACT  (see  "Workmen's  Compensation 
Laws,"  post). 

FARMERS,  statutes  regulating  sale  of  "concentrated  commer 
cial  food"  for  live-stock,  upheld  by  Justice  Hughes,  121- 
122. 

FOOD  AND  DRUGS  ACT  (see  "Pure  Food  Legislation,"  post). 

FRANCHISES  AND  VESTED  EIGHTS,  opinions  of  Justice  Hughes 
as  to,  quoted,  164-172. 

FRANK,  LEO  M.,  decision  of  action  of  Supreme  Court  as  to, 
191-204. 

"FREEDOM  OF  CONTRACT,"  opinion  of  Justice  Hughes  quoted 
as  to  the  constitutionality  of  legislative  limitation  of,  85- 
88;  in  relation  to  retention  of  trades-union  membership, 
149-153. 

FULLER,  MELVILLE  W.,  death  of,  as  Chief  Justice,  4. 

GEORGIA,  action  of  the  State  Courts  of,  in  the  case  of  Leo 
M.  Frank,  191-204. 

HARLAN,  JOHN  MAYNARD,  as  presiding  Justice,  4;  death  of,  5. 

"HARMONY  SOCIETY"  COMMUNITY,  legal  status  of,  211. 


INDEX  349 

HEADLIGHTS,  for  locomotives,  power  of  the  State  to  prescribe, 
53-56. 

HOLMES,  OLIVER  WENDELL,  as  Justice  of  Supreme  Court,  4-5; 
quoted,  as  to  impossibility  of  quantitative  legal  determina 
tion  of  considerations  of  social  advantage,  98.  4 

' '  HOURS  OF  LABOUR,  ' '  opinions  of  Justice  Hughes  as  to  legisla 
tive  limitation  of,  quoted,  127-131;  as  to  women,  162-163; 
decisions  on,  as  bearing  on  validity  of  "  minimum- wage  " 
legislation,  141-145. 

HUGHES,  CHARLES  E.,  appointment  of,  to  the  Supreme  Court, 
1-4;  previous  professional  career  of,  summarised,  1-2;  col 
leagues  of,  in  Supreme  Court,  4-5;  judicial  career  of,  sum 
marised,  5-7;  resignation  of,  commented  upon,  7-9;  not 
a  "dissenting  judge,"  9,  13;  qualities  of  judicial  work 
commented  upon,  10-14;  all  opinions  and  dissents  by, 
summarised  (see  Appendices,  ante) ;  labors  of,  in  the 
State  Bate  Cases,  pages  15-49;  his  freedom  from  theoris 
ing  and  preconception,  and  devotion  to  ascertained  facts, 
95-100;  his  services  to  the  administration  of  the  "pure 
food"  laws,  101-125;  his  outlook  upon  business  problems, 
173-190;  his  standards  of  official  responsibility  and  ad 
ministrative  efficiency,  221-234;  his  outlook  upon  "new 
exertions  of  National  power,"  227-234;  his  predilection 
for  trained  judgment  on  intricate  situations,  229-230;  his 
outlook  upon  the  Courts,  262-268;  his  view  of  the  law 
and  legal  procedure,  268-280. 

ILLINOIS,  child  labor  law  of,  opinion  of  Justice  Hughes  as  to, 
quoted,  83,  131;  action  of  State  authorities  of,  as  to 
"Mrs.  Price's  Canning  Compound,"  upheld  by  Justice 
Hughes,  117-121. 

IMMIGRANTS,  Justice  Hughes  quoted  as  to  rights  and  duties 
of,  248-262. 

INDIANA,  statute  of,  regulating  sale  of  "concentrated  commer 
cial  food"  for  live  stock,  upheld,  121-122. 

INITIATIVE  AND  REFERENDUM,  their  adoption  regarded  as  ques 
tions  for  the  legislature  and  people,  not  the  courts,  226- 
227. 

INTOXICATING  LIQUORS,  power  of  State  to  determine  and  make 
effective  its  policy  as  to,  upheld  by  Justice  Hughes,  123- 
125. 

"INVOLUNTARY  SERVITUDE,"  defined  and  applied,  242-247. 

IOWA,  statute  of,  regulating  sale  of  "concentrated  commer 
cial  food"  for  live-stock,  upheld,  122;  statute  of,  prohibit 
ing  contracts  limiting  employes'  recovery  for  industrial 
accidents,  upheld,  134. 

JAY,  JOHN,  service  as  Minister  to  England  without  resignation 
as  Chief  Justice,  3. 


350  INDEX 


KANSAS,  statute  of,  prohibiting  agreements  requiring  em 
ployes  to  withdraw  from  trades-union  membership,  146- 
153. 

LABOUR,  opinions  of  Justice  Hughes  as  to  the  scope  of  the 
regulative  power  of  the  Nation  to  protect,  74-85;  as  to  so- 
called  "freedom  of  contract"  of,  85-88;  regulation  of 
hours  of,  127-131;  of  women,  162-163;  opinion  upholding 
validity  of  statutes  prohibiting  limitation  of  employes' 
recovery,  134;  "minimum  wage"  legislation,  141-145; 
validity  of  Kansas  statute  prohibiting  agreements  requir 
ing  employes  to  withdraw  from  union  membership,  146- 
153;  statute  as  to  validity  of  assignments  of  future  earn 
ings,  160-161;  statutes  compelling  service  in  payment  of 
debt,  235-247. 

LAMAR,  JOSEPH  EUCKER,  as  Justice  of  the  Supreme  Court,  4-5. 

LIVE-STOCK,  statutes  regulating  sale  of  "concentrated  commer 
cial  foods"  for,  upheld  by  Justice  Hughes,  121-122. 

LURTON,  HORACE  H.,  as  Justice  of  the  Supreme  Court,  4-5. 

MALT  LIQUORS,  power  of   State  to  prohibit  sale  of,  123-125. 

MARSHALL,  JOHN,  his  constructive  statesmanship  expressed 
solely  in  judicial  opinions,  i;  Mr.  Bryce's  characterisation 
of,  quoted  and  applied,  12;  re-definition  of  concepts  of 
National  power,  16;  application  to  unanticipated  condi 
tions,  18. 

MCKENNA,  JOSEPH,  as  Justice  of  Supreme  Court,  4-5. 

MCEEYNOLDS,  JAMES  C.,  as  Justice  of  the  Supreme  Court,  5. 

MIMEOGRAPH,  validity  of  "license  restriction"  placed  by  Dick 
Co.  on  sale  of,  181-183. 

"MINIMUM  WAGE"  LEGISLATION,  hearing  before  the  Supreme 
Court  as  to  the  Oregon  statute,  described,  136-145. 

MINNESOTA  KATE  CASES,  monumental  service  of  Justice  Hughes 
in,  15-49;  holding  of,  summarised,  20-23;  opinion  of 
Justice  Hughes  in,  quoted  at  length,  23-50. 

"  MIS-BRANDING,  "  of  foods  and  drugs,  101-126. 

MISSISSIPPI,  prohibition  against  sale  of  malt  liquors,  upheld, 
123-125. 

MONOPOLY  AND  SPECIAL  PRIVILEGE,  application  of  Anti-Trust 
Acts  to,  173-185. 

MOODY,  WILLIAM  H.,  as  Justice  of  the  Supreme  Court,  4; 
quoted  by  Justice  Hughes,  86,  99. 

NATURALISATION,  purposes  of  and  obligations  created  by,  257- 
262. 

NEW  YORK  COUNTY  LAWYERS  '  ASSOCIATION,  address  of  Justice 
Hughes  before,  quoted,  13. 

NEW  YORK  STATE  BAR  ASSOCIATION,  address  of  Justice  Hughes 
before,  quoted:  as  to  State  and  National  power,  56-64; 
as  to  applications  of  the  "Bills  of  Eights,"  98-100;  as 


INDEX  351 

to  "the  Courts  as  expert  agents  of  democracy "  and  the 
reform  of  legal  procedure,  262-268. 

OHIO,  "hours  of  labour"  statute  of,  upheld,  127. 

OKLAHOMA,  validity  of  "  separate-coach ' '  law  of,  213-224. 

ONEIDA  COMMUNITY,  legal  status  of,   211. 

ORDER  OF  ST.  BENEDICT,  opinion  of  Justice  Hughes  as  to  status 
and  rights  of  members  of,  205-212. 

OREGON,  "hours  of  labour "  statute  of,  upheld,  127;  hearing 
before  the  Supreme  Court  as  to  the  "  minimum- wage ' ; 
statute  of,  described,  137-145. 

PATENT  LAWS,  "monopoly  power"  and  "license  restrictions" 
under,  181-185. 

"PEONAGE,"  application  of  unrepealed  Federal  statute  of 
1867  regarding,  to  Alabama  legislation,  243-247. 

PITNEY,  MAHLON,  as  Justice  of  the  Supreme  Court,  5. 

"POINSETTA,"  power  of  State  to   prohibit  sale  of,   123-125. 

"POLICE  POWER,"  standards  of  judicial  definition  of  the, 
76-78,  150-153. 

POUND,  EOSCOE,  quoted,  as  to  the  sociological  movement  in 
jurisprudence,  97. 

"PRICE  EESTRICTIONS, "  on  sale  of  a  proprietary  medicine,  179- 
180;  on  sale  of  mimeograph,  180-182;  on  sale  of  "Sana- 
togen,"  183-185. 

PROCEDURE,  Justice  Hughes  quoted  as  to  the  reform  of  legal, 
262-280. 

PROHIBITION,  power  of  State  to  make  its  policy  effective,  up 
held,  123-125. 

PUBLIC  SERVICE  EEGULATION,  connection  of  Governor  Hughes 
with,  1;  boundaries  of  National  and  State  power,  20-50; 
standards  of  determining  whether  rate  or  service  orders 
are  "  confiscatory, "  88-95;  franchise  obligations  and 
vested  rights,  164-172. 

PUBLIC  WELFARE  AND  NEEDS,  as  elements  in  "police  power" 
definition,  76-78,  150-153. 

"PURE  FOOD"  LEGISLATION,  dissent  as  to  the  meaning  of 
"mis-branding,"  6;  opinions  of  Justice  Hughes  concern 
ing,  quoted,  101-126. 

EACIAL  CONTROVERSIES,  the  Frank  case  in  Georgia,  191-204; 
"separate  coach"  laws,  213-220;  Alabama  "peonage" 
statute,  235-247;  immigration  and  discrimination  against 
aliens,  248-259;  the  citizenship  of  Chinese  persons,  260- 
261. 

EAILROADS,  boundaries  of  State  and  National  power  concern 
ing,  20-50;  prescribing  of  head-lights,  53-56;  standards 
for  determining  remunerativeness  of  rates,  88-95;  regula 
tion  of  hours  of  labour  of  employes  of,  127-131;  fran 
chise  obligations  and  vested  rights  of,  164-173;  validity 
of  Oklahoma  "separate-coach"  law,  213-220. 


352  INDEX 

REASONABLE  RELATIONSHIP,  DOCTRINE  OF,  as  element  in  deter 
mining  " police  power"  and  "due  process"  scope,  74-79; 
opinions  of  Justice  Hughes  quoted  concerning,  79-83;  in 
connection  with  "pure  food"  laws,  119-120;  as  to  "pro 
hibition"  laws,  124-125;  as  to  hours  of  labour,  127-128; 
as  to  child  labour,  131;  as  to  "minimum  wage"  laws,  141- 
145;  as  to  prohibition  of  agreements  requiring  withdrawal 
from  union  membership,  150. 

RELIGIOUS  ORDERS,  status  of  Order  of  St.  Benedict,  205-212. 

RESTRAINT  OF  TRADE,  standards  of,  unreasonableness  in,  173- 
185. 

RUTLEDGE,  JOHN,  failure  to  confirm  as  Chief  Justice,   3. 

"SANATOGEN,"  validity  of  attempted  restriction  of  retail 
price  of  patented  article,  183-185. 

"SEPARATE-COACH"  LAWS,  validity  of,  opinion  of  Justice 
Hughes,  quoted,  213-224. 

"SHERLEY  AMENDMENT,"  to  the  definition  of  ''mis-brand 
ing"  in  the  Food  and  Drugs  Act,  104-105. 

"SHREVEPORT  CASE,"  as  to  interstate  and  intrastate  rates, 
referred  to,  18-19;  holding  of,  summarised,  20. 

SLEEPING-CARS,  rule  of  equality  in  transportation  facilities 
applied  to,  218-220. 

STANDARD  OIL  CASE,  action  of  Justice  Hughes  in,  175-176. 

STATE  RATE  CASES  (see  Minnesota  Rate  Case,  ante,  and  in 
"Table  of  Cases,"  ante). 

SURVEY,  article  in,  as  to  hearing  of  "minimum-wage"  case, 
quoted,  137-145. 

TAFT,  WILLIAM  HOWARD,  appointment  of  Mr.  Hughes  to  the 
Supreme  Court,  1;  re-constituting  of  personnel  of  Court, 
4-5. 

TALMUD,  tale  adapted  from,  applied  to  judicial  statesmanship 
of  Mr.  Hughes,  14. 

TARIFF  LAWS,  qualities  which  should  characterise  the  opera 
tion  of,  indicated  by  Justice  Hughes,  221. 

TRADE-MARKS,  unfair  imitation  of,  186-189. 

TRADES-UNIONS,  rights  of  employes  to  retain  membership  in, 
146-153. 

"UNFAIR  COMPETITION,"  opinion  of  Justice  Hughes  as  to, 
quoted,  179-190. 

UNIFORM  STATE  LAWS,  Justice  Hughes  quoted  as  to,  264-265. 

VAN  DEVANTER,  WILLIS,  as  Justice  of  the  Supreme  Court,  4-5. 

VON  HOLST,  DR.  H.,  "Constitutional  Law  of  the  United 
States,"  quoted  as  to  the  qualifications  of  American 
statesman  and  jurist,  iii. 

WHITE,  EDWARD  D.,  appointment  of,  as  Chief  Justice,  4. 

"WHITE  SLAVE"  CASES,  quotation  from  opinion  in,   67. 

WILLOUGHBY,  WESTEL  W.,  "The  Supreme  Court  of  the  U.  S.," 
quoted,  3. 


INDEX  353 

WILSON,  WOODROW,  appointment  of  Mr.  McReynolds  and  Mr. 
Brandeis  to  the  Supreme  Court  by,  5. 

WOMEN,  rights  and  marital  status  of,  5;  regulation  of  hours 
of  labour  of,  127-131,  161-163;  "minimum-wage"  legisla 
tion  affecting,  137-145;  right  of  wife  to  sue  husband  in 
tort,  154-160;  status  of  wife  as  to  assignments  of  the  hus 
band's  earnings,  160-161;  status  in  industry,  162-163. 

WORKMEN'S  COMPENSATION  LAWS,  Governor  Hughes'  connec 
tion  with  the  work  of  the  Wainwright  Commission  for, 
2;  messages  to  the  legislature  concerning,  quoted,  132-133; 
opinions  as  to  validity  of  statutes  prohibiting  contracts 
limiting  indemnity,  quoted,  134. 


THIS  BOOK   IS  DUE  ON   THE   LAST  DATE 
STAMPED   BELOW 


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RECALL 


JUKI  01985 
RET  ¥  1965 


DUE  MAR  1  7  197 
1  5  REITD 


LIBRARY,  UNIVERSITY  OF  CALIFORNIA,  DAVIS 

Book  Slip-10m-l,'63(D5068s4)458 


Ransom,  W.L. 

Charles  E.  Hughes 


Call  Number: 


H86 
R2 


E664 


292O03 


